Taking instructions (Zimbabwe)
Once the defence lawyer has understood the State case and has familiarised himself with the essential ingredients of the criminal offence which has been levelled against his client, he is then in a position to take instructions from his client.
If he has not done this preliminary work, he will not be able to take proper instructions. For instance, if he does not know the essential elements of the crime charged, he will not be able to ask salient questions of his client to determine whether all the essential elements appear to have been satisfied.
In an address (reproduced in 1988 Vol 1 No 2 Legal Forum 3) MCNALLY JA gave guidance on preparing to defend an accused person. Although this speech related to murder cases, it is of more general application as well.
Read your papers carefully before you see the client. Try to recreate, in your mind's eye, the picture that the State seeks to create. Fit together, in chronological order, the various bits of evidence referred to in the State Outline. At the end you should have in your mind a clear picture of what happened, on the State's version.
Even at this stage, before speaking to your client, there may be a few questions in your mind. Perhaps the identification is weak. Perhaps a key witness has a reason to be lying or may be trying to shift the blame from himself or from his friend or relative. Perhaps there is a hint of drink or provocation, or insanity. Keep these thoughts in the back of your mind. They are provisional only, at this stage, depending on what your client will say.
He goes on to say in respect of a pro deo client who is facing a murder charge:
When you see your client, spend some time reassuring him. He may have been locked up for months. He has probably just been told by a warder; "Come with me". He doesn't know who you are or why you are there. You may be the prosecutor or a member of the CID as far as he is concerned. So spend a little time making sure that he knows you are there to help him. I always used to stress that I had been appointed by the Judge to defend him. I think that is easier for him to understand than if you say you are appointed by the State. After all, it is the State which is prosecuting him.
Initially the client should be allowed to tell his story in his own words with as few interruptions as possible. In this way the defence lawyer will obtain a general description of the problem from the client. Any questions asked at this stage should be open-ended questions rather than specific questions. Open-ended questions are questions which call upon the client to describe the course of the events such as "What happened after that?" If you interpose with specific questions on precise detail when the client is relating his story the client may lose his train of thought and consequently omit important facts which otherwise the client would have disclosed. When the client has finished relating his story and you have obtained a general description of the events, you can then probe for specific details and seek clarification and elaboration on points which require this. At this stage specific questions can be asked to fill gaps in the story and to probe ambiguities.
The lawyer must listen carefully to what his client says and take full instructions. This does not mean that he must take down everything a client says. He must extract from the client information which is relevant to his defence to the charges levelled against him.
The legal practitioner knows what the State allegations are that need to be answered and he must obtain from his client all information which is relevant to these allegations.
In complex and serious cases the lawyer will usually have to see his client on several occasions in order to take full instructions.
The weaknesses in the client's defence and ways of tackling them must be carefully considered.
The defence lawyer should bring to the client's attention fundamental weaknesses in his case which are likely to lead to his defence not being believed. The client should be questioned closely about all unconvincing aspects of his defence.
In court the defence lawyer must present the case of his client to the best of his abilities, using his skill and judgment. The case is compiled on the basis of instructions given by the client. The lawyer, however, is not a mere mouthpiece of his client who must reproduce in court everything he was told by his client in the form in which it was told by the client. He has to sift through the welter of information and discard what is irrelevant and useless for defence purposes.
The defence lawyer will obviously be able to discern when putting forward a case in the way in which the client wants it put will do more harm than good. If, in a murder case, the client says that he accidentally stabbed the deceased six times, a good lawyer would not accept such instructions at face value. The inherent absurdity of such instructions should be pointed out to the client in very strong terms. Where the defence is downright untenable it should be put to the accused that this line of defence appears to be ridiculous and will not be believed by court. It would be far more in the client's interests to drop a ridiculous line of defence and plead guilty in order to try to obtain the maximum amount of mitigation. If he puts forward a totally implausible story the usual result is that aggravating features are emphasised rather than minimised.
MC NALLY JA has this to say about what he considers to be the most critical part of taking instructions:
It is necessary to explore [the accused's] story by putting to him the evidence of the witnesses whose accounts conflict with his. You must obviously be careful not to suggest to him avenues of escape so that he gradually tailors his story untruthfully to fit a line of defence you have suggested to him. That is patently unethical. But there is a world of difference between saying:
'You had better say you were drunk otherwise you will hang for sure'
which is totally unethical, and saying;
'Several of the witnesses say you were drunk. You should not be afraid to admit that if it is true. Now would you like to think about that?'
which is entirely proper. Many people are ashamed to admit they were drunk, or they think it will make matters worse for them.
You may end up with a story which sounds wildly improbable. Your duty is to check it out. Are there witnesses who can support it? If the story is an alibi, get hold of the supporting witnesses. If they are wholly unhelpful go back to your client and tell him. I have had sometimes had to say to a client:
Look, I have checked out your story and it just not hang together. I must advise you that I do not think the Court will believe it. If you insist that it is true, I must accept that, and I will do the best I can with the facts you have given me. But I must advise you to think very carefully. If you are not telling me the truth it may be better for you to tell me the truth now.
But be very careful, because he may then say to you: 'Well, what should I say?', and there, of course, you may not prompt him.
If the lawyer tells his client that his story is implausible and calls upon him to "tell the truth", there is the risk that the client will proceed to admit his guilt and ask the lawyer to find ways to "get him off". It may be better simply to advise the client of the weaknesses in his defence case and to see how he responds.
The defence lawyer must not override his client's instructions merely because he does not believe the client's story. If he does, it will be extremely difficult for him to get the court to accept his client's version of the facts. It is not the lawyer's role to sit in judgment over his client. If the client insists on putting forward a story which to the lawyer appears incredible, the lawyer is still bound to advance that story in its best possible light. It is entirely wrong for him to present case in such a way that it is patently obvious that he has no faith in it. It must always be remembered that sometimes the most absurd sounding story turns out to be true.
In his article in the Legal Forum 3, MCNALLY JA advises that:
When you go to Court you should have a plan of action in your mind. Assuming, as you must, that your client's version is correct, then you may have to discredit witness A completely. How will you set about that? Could he have a motive for lying? Explore it. Could he be mistaken? Explore that line. Your client may have given you useful ammunition to use. Witness B may be different. His evidence may need only a change of emphasis to accord completely with your client's evidence. How are you going to deal with him? It may be easy. The police may have recorded his statement inaccurately. He may readily agree with what you put to him.