Difference between revisions of "India Criminal Defense Manual - Various Defense Strategies"
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Although some courts do not recognize "Maltreated Women Syndrome" as a criminal defense, it can be considered secondary evidence for other defenses such as self-defense, defense from being coerced, etc. Because "Maltreated Women Syndrome" affects a person's behavior, an expert needs to be retained to testify and explain her acts in this context. Some courts allow using expert testimony about "Maltreated Women Syndrome" to prove the accused did not have the requisite intent for committing the alleged crime. | Although some courts do not recognize "Maltreated Women Syndrome" as a criminal defense, it can be considered secondary evidence for other defenses such as self-defense, defense from being coerced, etc. Because "Maltreated Women Syndrome" affects a person's behavior, an expert needs to be retained to testify and explain her acts in this context. Some courts allow using expert testimony about "Maltreated Women Syndrome" to prove the accused did not have the requisite intent for committing the alleged crime. | ||
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| + | '''Being under Coercion or Duress''' | ||
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| + | If the accused was forced or coerced to participate in a crime, the legal aid lawyer can argue the defense of being forced or coerced. When many accuseds are involved in a case and any one of them may have been coerced by the other accuseds, the legal aid lawyer often employs this kind of defense. | ||
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| + | '''Criminal Act of Necessity''' | ||
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| + | When the accused committed some crimes to avoid more serious damage, the defense of necessity can be adopted. Similar to the stipulations concerning justifiable defense, if the accused's act exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment. | ||
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| + | '''Misunderstanding of Law/Facts:''' | ||
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| + | In this type of defense, the criminal legal aid lawyer argues that the accused had no knowledge that his act constituted a crime at all. In the defense of misunderstanding the law, the criminal legal aid lawyer must prove that first, the accused can be found guilty of the alleged crime only if he deliberately broke the law, and second, that the accused did not know the law at the time of the offense. In the defense of misunderstanding facts, the criminal legal aid lawyer must prove that first, the accused misunderstood the true circumstances at the time of the offense; second, if he understood them, he would not have committed the crime; third, there were understandable reasons for this misunderstanding. | ||
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| + | '''Being Instigated or Misled by Government''' | ||
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| + | When the government has instigated or misled the accused to commit a crime, the criminal legal aid lawyer can consider using two types of defense. In the "instigated by the government" defense, the legal aid lawyer must prove that government officials instigated the accused to commit the crime, and that the accused would not have otherwise committed the crime. In the "misled by the government" defense, the criminal legal aid lawyer must prove that first, government officials told the accused that the alleged crime was legal; second, the accused committed the crime only because he believed this; and third, there were understandable reasons for the accused's credulousness. The legal aid lawyer then argues that the accused should therefore not be held criminally responsible. In this type of defense, the legal aid lawyer focuses on the government officials' acts rather than on the accused's thoughts and on whether the accused had the motive to commit the crime. Even if the case concerns a crime usually considered under the "strict responsibility principle" (i.e. even if the crime is one of "strict responsibility" under the law), this type of defense can still be employed. | ||
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| + | '''Criminal Act with Sincere Intent''' | ||
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| + | "Sincerity" refers to very sincere ideas or beliefs, or is used to describe somebody lacking in evil or malicious intent. The defense of "crimes with sincere intent" usually applies to crimes of tax or financial fraud for which the accused's intent needs to be verified. Deliberate fraud or forgery cannot be considered "sincere." If, however, the criminal legal aid lawyer can prove the accused possessed all sincerity in his act, it can be inferred that the accused did not have fraudulent intent as alleged by the prosecutor. | ||
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| + | == Did the accused complete the crime? == | ||
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| + | Although being only at a certain stage of the crime (e.g. an intermediate stage) cannot count as evidence that proves the accused's innocence, it can lessen the accused's punishment in the court's final sentencing and even result in the accused being exempted from punishment. Thus, the legal aid lawyer must carefully research the accused's acts to determine whether the following circumstances exist so as to request a mitigated punishment or exemption from punishment : crime preparation V, an attempt to commit a crime, as the discontinuation of a crime (or lack thereof). | ||
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| + | == Is there anyone who should take more responsibility than the client for the alleged offense? == | ||
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| + | Does the accused have any other jointly accused persons? If so, the legal aid lawyer must investigate the concrete role of every co-accused to determine the actual role of the client. The lawyer needs to pay particular attention to joint crimes . | ||
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| + | Was your client the ringleader in the course of the crime? Did your client organize, plot, or direct/lead the criminal group or other jointly accused persons? Was your client playing an important role in the course of joint crimes? Did your client instigate others to commit a crime? | ||
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| + | Did your client play a secondary role in the course of the preparation and commission of the crime? | ||
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| + | IS YOUR CLIENT ELIGIBLE FOR A LIGHTER OR MITIGATED | ||
| + | PUNISHMENT? | ||
| + | The court can be allowed to give the accused a mitigated punishment or | ||
| + | exempt him from punishment under some circumstances according to | ||
| + | law. | ||
| + | Can the lawyer still seek a mitigated punishment for the client if there are | ||
| + | no statutory specifications about mitigation? | ||
| + | Yes, The following are some points of evidence that may help in obtaining | ||
| + | a mitigated punishment: | ||
| + | 1. The accused does not have long-term criminal record. | ||
| + | 2. The accused has expressed sincere remorse and self-examination for | ||
| + | having participated in the crime. | ||
| + | 3. The accused has compensated the victim for all his or her losses. | ||
| + | 4. The accused is still a minor and also wants to continue schooling; his | ||
| + | school also allows him to continue enrollment. | ||
| + | 5. The accused needs to take care of elderly and young household | ||
| + | members. | ||
