Difference between revisions of "Vietnam Criminal Defense Manual - Preparation of the defense"

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'''Practice Tip No. 5:'''
 
'''Practice Tip No. 5:'''
  
−
How far does an investigation have to go to find evidence?  The law established specific steps that must be followed.  See, CPC, Articles 34, 35, 36, set out some of the required duties of the government investigators.   
+
How far does an investigation have to go to find evidence?  The law established specific steps that must be followed.  See, CPC, Articles 34, 35, 36, set out some of the required duties of the government investigators.   
  
 
The police investigation may be sufficient to charge someone with a crime, but it is not always as detailed as a legal defender requires. This is because crimes are sometimes charged based on appearances, rather than truth.  For example, your client is charged with robbing a Pho restaurant. Your client is arrested because he looks just like the bank robber.  He was arrested based on his appearance.  The truth was that your client was at work a kilometer away when the bank was robbed.  The truth is in the details!   
 
The police investigation may be sufficient to charge someone with a crime, but it is not always as detailed as a legal defender requires. This is because crimes are sometimes charged based on appearances, rather than truth.  For example, your client is charged with robbing a Pho restaurant. Your client is arrested because he looks just like the bank robber.  He was arrested based on his appearance.  The truth was that your client was at work a kilometer away when the bank was robbed.  The truth is in the details!   
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* Noise
 
* Noise
 
   
 
   
−
 
 
The above traits will help narrow the defense investigation.  The traits will also help the defense attorney discover where a witness testimony is strongest and weakest.   
 
The above traits will help narrow the defense investigation.  The traits will also help the defense attorney discover where a witness testimony is strongest and weakest.   
 
Another area to inquire is how the witness reacted to the prosecutor's investigators.  Were they led to their testimony or did they give testimony free from coercion or suggestion?  This is especially important to know when a witness makes an identification of your client as the perpetrator of the crime.   
 
Another area to inquire is how the witness reacted to the prosecutor's investigators.  Were they led to their testimony or did they give testimony free from coercion or suggestion?  This is especially important to know when a witness makes an identification of your client as the perpetrator of the crime.   
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The below points were developed in response to the question, "Why do suspects confess?"  
 
The below points were developed in response to the question, "Why do suspects confess?"  
  
−
Common Personality Traits of the Accused in False Confessions
+
'''Common Personality Traits of the Accused in False Confessions'''
−
A great deal of trust in authority
+
 
−
Lack of self-confidence
+
* A great deal of trust in authority
−
Susceptible to suggestion
+
* Lack of self-confidence
 +
* Susceptible to suggestion
 +
 
 +
'''Voluntary False Confessions'''
 +
 
 +
* Confession is offered without police pressure
 +
* The accused learns about the crime and contacts the police
 +
* Mental health issues: depression, schizophrenia
 +
* The accused has a desire for notoriety
 +
 
 +
'''Coerced-Complaint False Confessions'''
 +
 
 +
* Pressure of the interrogation process
 +
* Confession is provide in exchange for the promise to return home, ending the interview, or,  protecting the suspect's family
 +
* Perception of immediate gain outweighs long term consequences
 +
* There is a retraction once the coercion is diminished or gone
  
 +
'''Coerced-Internalized False Confession'''
  
−
7b(2) Voluntary False Confessions
+
* The belief of guilt without actual memory of the event
−
+
* Memory disturbed because of amnesia or other causes.
−
and contacts the police
+
* Coercive tactics and techniques used to cause self-doubt
−
+
* Coercive tactics and techniques used to create a false reality
−
a desire for notoriety
 
  
−
7b(3) Coerced-Complaint False Confessions
+
'''Coercion Interrogation Techniques'''
−
 
−
's family
 
−
 
−
 
  
−
7b(4) Coerced-Internalized False Confession
+
* Repeated statements by investigators of  your client's guilt
−
of guilt without actual memory of the event
+
* Repeated reminders of memory problems
−
of amnesia or other causes.
+
* Withholding information that might suggest guilt
−
+
* Isolation from family, friends and/or legal defender
−
+
* Lengthy interrogation
 +
* Interrogation with emotional intensity
 +
* Statements of scientific evidence without explanation and/or truth
 +
* Creating an atmosphere where the accused may fear denying guilt
 +
* Physical threats
 +
* Physical abuse
  
−
7b(5) Coercion Interrogation Techniques
+
'''Linguistic Responses to a Coerced Interrogation'''
−
's guilt
 
−
 
−
 
−
 
−
 
−
 
−
 
−
 
−
 
−
 
  
−
7b(6) Linguistic Responses to a Coerced Interrogation
+
* "I guess I must have . . ."
−
"I guess I must have . . ."
+
* "I think I did this next . . ."
−
"I think I did this next . . ."
+
* "If what you said is true, then . . ."
−
"If what you said is true, then . . ."
+
* "I just want to get this over with . . ."
−
"I just want to get this over with . . ."
+
* "If I tell you what happened, can I go home?"
−
"If I tell you what happened, can I go home?"
 
  
 +
'''Practice Point No. 9:'''
  
−
Practice Point No. 9: The legal defender must be involved when the accused is being interrogated.  See CPC Articles 131, 132, establishing the rights of the accused and his legal defender during an interrogation
+
The legal defender must be involved when the accused is being interrogated.  See CPC Articles 131, 132, establishing the rights of the accused and his legal defender during an interrogation
  
 +
== Elements of the Crime ==
  
−
IV.8 Elements of the Crime
+
Defenses to criminal charges often appear like flickers of light only to be extinguished by new evidence or a change in circumstances.  Similarly, new defenses can rise like flames and burn so bright that the truth of innocence is obvious to all.  In either case, it is important to know the defenses that apply to the most common crimes.   
−
Defenses to criminal charges often appear like flickers of light only to be extinguished by new evidence or a change in circumstances.  Similarly, new defenses can rise like flames and burn so bright that the truth of innocence is obvious to all.  In either case, it is important to know the defenses that apply to the most common crimes.   
 
−
Practice Tip No. 10: A court must determine whether a criminal act had been committed.  See, CPC Article 63, which states what facts are required to be proved in a criminal case.  See also, VCC, Article 8, The Definition of a Crime.
 
  
 +
'''Practice Tip No. 10:'''
  
−
The formulation of a defense begins with the elements of the crime charged.  The elements define the crime.  If the elements of the crime are proved, the accused will be found guilty.  On the other hand, if the elements of the crime are not proved to exist, the accused must be set free.  In this way, the elements of a crime are like a three-legged chair; if you take away one leg of the chair, the chair will fall.  Like the chair, if you take away one element that defines a criminal charge, the charge must fall.   
+
A court must determine whether a criminal act had been committed.  See, CPC Article 63, which states what facts are required to be proved in a criminal case.  See also, VCC, Article 8, The Definition of a Crime.
 +
 
 +
The formulation of a defense begins with the elements of the crime charged.  The elements define the crime.  If the elements of the crime are proved, the accused will be found guilty.  On the other hand, if the elements of the crime are not proved to exist, the accused must be set free.  In this way, the elements of a crime are like a three-legged chair; if you take away one leg of the chair, the chair will fall.  Like the chair, if you take away one element that defines a criminal charge, the charge must fall.   
 +
 
 +
'''Elements of Common Crimes'''
  
−
8a Elements of Common Crimes
 
 
Here are the general elements of common crimes along with factors that aggravate or mitigate the crime.
 
Here are the general elements of common crimes along with factors that aggravate or mitigate the crime.
−
8a(1) Murder:
 
−
 
−
 
−
 
−
 
−
 
−
 
  
−
8a(2)Assault:
+
'''Murder:'''
−
Physical injury can be proved
+
 
−
A threat is believed
+
* A death is confirmed
−
Intent to cause serious physical injury
+
* Intent to cause the death of a specific person
−
Use of a dangerous instrument or weapon
+
* Intent to cause serious physical harm and death occurs
−
Intent to cause physical injury
+
* Intent to act in a manner that may cause physical harm or death and death occurs
−
An act that shows an extreme indifference to human life
+
* An act that shows an extreme indifference to human life
−
Multiple acts of violence
+
* When unaware of a risk of death, the accused unconsciously causes the death of another
−
A reckless act that causes physical injury
+
 
−
The victim is placed in fear by an action or an object
+
'''Assault:'''
 +
 
 +
* Physical injury can be proved
 +
* A threat is believed
 +
* Intent to cause serious physical injury
 +
* Use of a dangerous instrument or weapon
 +
* Intent to cause physical injury
 +
* An act that shows an extreme indifference to human life
 +
* Multiple acts of violence
 +
* A reckless act that causes physical injury
 +
* The victim is placed in fear by an action or an object
  
 +
'''Theft:'''
  
 +
* Property is taken from an owner
 +
* No force or threat was used
 +
* The value of the property taken
 +
* The accused possessed the property
  
−
8a(3) Theft:
+
'''Robbery:'''
−
 
−
 
−
 
−
 
  
−
8a(4) Robbery:
+
* Property is taken from an owner
−
Property is taken from an owner
+
* There was use of force or threats
−
There was use of force or threats
+
* With a weapon
−
With a weapon
+
* Without a weapon
−
Without a weapon
+
* Injury accompanies the act
−
Injury accompanies the act
+
* The value of the item taken
−
The value of the item taken
+
* The accused possessed the property
−
The accused possessed the property
 
  
−
8a(5) Crimes Before the Act
+
'''Crimes Before the Act'''
−
 
−
 
−
 
  
 +
* Conduct that is a substantial step in the attempt of a crime
 +
* Intent to cause another to engage in a crime by solicitation
 +
* To conspire with the intent to enter an agreement with one or more persons to commit a crime and one person acts to further the conspiracy.
 +
 +
'''Mental States'''
  
−
IV.9 Mental States
 
 
After reviewing the elements of a crime, the next step in formulating a defense is to look at the mental state that applies.  The mental state of the accused is not always easy to prove.  "Who", it has been said, "really knows what their brother thinks?"  Mental state is usually proved by looking at how a person acts and the emotional state that accompanies that action. Typically, an intentional act is punished more severely than a negligent or reckless act.   
 
After reviewing the elements of a crime, the next step in formulating a defense is to look at the mental state that applies.  The mental state of the accused is not always easy to prove.  "Who", it has been said, "really knows what their brother thinks?"  Mental state is usually proved by looking at how a person acts and the emotional state that accompanies that action. Typically, an intentional act is punished more severely than a negligent or reckless act.   
−
9a Suggested Mental States
+
 
 +
'''Suggested Mental States'''
 +
 
 
Here are some suggested mental states that apply to common crimes.
 
Here are some suggested mental states that apply to common crimes.
−
9a(1) Intentional
 
−
 
−
 
−
 
−
 
−
 
  
−
9a(2) Negligent
+
'''Intentional'''
−
Should have know of the consequences of the act
+
 
−
Careless failure to know the consequences
+
* Clear knowledge
−
Indifference to the consequences
+
* Certain, firm action
−
Failure to act to prevent the consequences
+
* Socially dangerous acts
 +
* Spoken intent
 +
* Clear indifference to the consequences
 +
 
 +
'''Negligent'''
 +
 
 +
* Should have know of the consequences of the act
 +
* Careless failure to know the consequences
 +
* Indifference to the consequences
 +
* Failure to act to prevent the consequences
 +
 
 +
'''Reckless'''
 +
 
 +
* An action outside of accepted behavior
 +
 
 +
'''Practice Tip No. 11:'''
  
−
9a(3) Reckless
+
Memorize the four mental states as defined in the VCC, Articles, 9, 10, 11 and 12: Intentional, Unintentional, Unforeseen, Nonimputability.
−
 
−
Practice Tip No. 11: Memorize the four mental states as defined in the VCC, Articles, 9, 10, 11 and 12: Intentional, Unintentional, Unforeseen, Nonimputability.
 
  
 
Once finding the mental state(s) that apply to the criminal charges, the legal defender should turn to avoiding a mental state that either increases the likelihood of guilt or punishment if they are found guilty.  Avoiding a mental state is harder than showing the existence of a mental state from actions or results.  The argument that the act or the result was exaggerated or misinterpreted is always available.  In addition to this argument, there are others that try to avoid or replace a criminal mental state with one that under the law is not criminal.  Sometimes an expert is necessary.  
 
Once finding the mental state(s) that apply to the criminal charges, the legal defender should turn to avoiding a mental state that either increases the likelihood of guilt or punishment if they are found guilty.  Avoiding a mental state is harder than showing the existence of a mental state from actions or results.  The argument that the act or the result was exaggerated or misinterpreted is always available.  In addition to this argument, there are others that try to avoid or replace a criminal mental state with one that under the law is not criminal.  Sometimes an expert is necessary.  
−
Practice Tip No. 12: The mental state of both the accused and of witnesses may be subject to the examination of an expert.  See, CPC Article 155, stating that an examination is compulsory if the accused may not understand the circumstances of the charge or trial, and if the witness or victim may not be able to understand and testify truthfully.
 
  
 +
'''Practice Tip No. 12:'''
 +
 +
The mental state of both the accused and of witnesses may be subject to the examination of an expert.  See, CPC Article 155, stating that an examination is compulsory if the accused may not understand the circumstances of the charge or trial, and if the witness or victim may not be able to understand and testify truthfully.
 +
 +
The most extreme mental state is insanity.  There are, of course, degrees of insanity as well as moments of insanity. The timing of the change in mental state (from sane to insane) will affect the defense.  Sanity may be lost before or at the time of the criminal act.  Sanity may also be lost after the criminal act and sometimes not until the accused is incarcerated.  Declaring someone insane is a difficult task.  However, in the most serious cases with the most damaging evidence, finding the accused insane may be the only way to explain the actions and avoid the most extreme punishment. 
 +
 +
The age of the accused is a source to look at when discussing mental states.  Under the Vietnam Criminal Code, Articles 57 to 60,  there are three ages that a legal defender must be aware of; under 14 years of age, between 14 and 16 years of age, and over 16 years.  Depending on the age of the accused they may or may not be subject to criminal responsibility.  In addition, the young age of an accused also affects their potential sentence.
 +
 +
'''Recognized Defenses to Common Crimes'''
 +
 +
Recognized defenses are those that are recognized as legal defenses to the criminal charge.  Like all defenses, they must be based on factual evidence and supported by skilled legal argument.  The benefit of these defenses is that they are written into law and thus must be recognized by the court.  If the legal defender can satisfy the elements of the defense, the accused will be freed. There are generally two areas of defenses.  First, Justification Defenses.  These defenses are used when the accused admits to the criminal act.  Second, Affirmative Defenses.  These defenses are used when the accused does not admit to the criminal act.  In both defenses, the legal defender must argue the defense on behalf of the accused.
 +
 +
'''Practice Tip No. 13:'''
  
−
The most extreme mental state is insanity.  There are, of course, degrees of insanity as well as moments of insanity. The timing of the change in mental state (from sane to insane) will affect the defense.  Sanity may be lost before or at the time of the criminal act.  Sanity may also be lost after the criminal act and sometimes not until the accused is incarcerated.  Declaring someone insane is a difficult task.  However, in the most serious cases with the most damaging evidence, finding the accused insane may be the only way to explain the actions and avoid the most extreme punishment. 
+
Justification Defenses are found in the VCC at Articles 13 & 14.   
−
The age of the accused is a source to look at when discussing mental states.  Under the Vietnam Criminal Code, Articles 57 to 60,  there are three ages that a legal defender must be aware of; under 14 years of age, between 14 and 16 years of age, and over 16 years.  Depending on the age of the accused they may or may not be subject to criminal responsibility.  In addition, the young age of an accused also affects their potential sentence.
 
−
 
−
IV.10 Recognized Defenses to Common Crimes
 
−
Recognized defenses are those that are recognized as legal defenses to the criminal charge.  Like all defenses, they must be based on factual evidence and supported by skilled legal argument.  The benefit of these defenses is that they are written into law and thus must be recognized by the court.  If the legal defender can satisfy the elements of the defense, the accused will be freed.
 
−
There are generally two areas of defenses.  First, Justification Defenses.  These defenses are used when the accused admits to the criminal act.  Second, Affirmative Defenses.  These defenses are used when the accused does not admit to the criminal act.  In both defenses, the legal defender must argue the defense on behalf of the accused.
 
−
Practice Tip No. 13: Justification Defenses are found in the VCC at Articles 13 & 14.   
 
 
 
−
As you can see from the below list, a Justification Defense requires the legal defender to present evidence to the court.  Not to be overlooked is the statement of the accused.  The legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  Remember, the accused will be admitting to a criminal act!  Here are some ideas that support a Justification Defense.
+
As you can see from the below list, a Justification Defense requires the legal defender to present evidence to the court.  Not to be overlooked is the statement of the accused.  The legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  Remember, the accused will be admitting to a criminal act!  Here are some ideas that support a Justification Defense.
−
10a Justification Defenses
 
−
.
 
  
−
+
'''Justification Defenses'''
  
−
: the accused was coerced into committing a criminal  
+
* '''Ignorance:''' the accused was unaware that he was committing a criminal act.
−
act.  Further, it was an action that had not been done in the past.  
 
  
−
: the act was authorized by an owner or supervisor.  This is usually used when the criminal charge is theft.
+
* '''Mistake:''' the act was made by mistake and without criminal intent
  
−
: the action was made to protect a valid interest.
+
* '''Entrapment:''' the accused was coerced into committing a criminal act.  Further, it was an action that had not been done in the past.  
  
−
: the act was done in response to a threat and for protection.  The defensive act must be contemporaneous with the threat.  The threat must be commonly recognized threat.  
+
* '''Consent:''' the act was authorized by an owner or supervisor.  This is usually used when the criminal charge is theft.
  
−
: the act was done in response to a threat and for protection.
+
* '''Necessity:''' the action was made to protect a valid interest.
  
−
The defense of property: the act was done to protect a home or business.  
+
* '''Self-defense:''' the act was done in response to a threat and for protection.  The defensive act must be contemporaneous with the threat.  The threat must be commonly recognized threat.
 +
 
 +
* '''The Defense of Another:''' the act was done in response to a threat and for protection.
 +
 
 +
* '''The defense of property:''' the act was done to protect a home or business.  
  
 
An Affirmative Defense requires additional efforts since the accused is arguing that, despite the prosecutor's case, he did not do the crime.  And in some cases the accused will argue that he was not at the crime scene.  Again, the legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  One must remember that these defenses argue that the prosecutor and his investigators are completely mistaken!  Here are some ideas that support an Affirmative Defense.
 
An Affirmative Defense requires additional efforts since the accused is arguing that, despite the prosecutor's case, he did not do the crime.  And in some cases the accused will argue that he was not at the crime scene.  Again, the legal defender, witnesses, and the accused must all have a coherent and compelling story to tell for a successful defense.  One must remember that these defenses argue that the prosecutor and his investigators are completely mistaken!  Here are some ideas that support an Affirmative Defense.
  
−
10b Affirmative Defenses
+
'''Affirmative Defenses'''
−
Alibi: the accused was not at the crime scene.  This defense requires witnesses or some other type of documentation.
+
 
 +
* '''Alibi:''' the accused was not at the crime scene.  This defense requires witnesses or some other type of documentation.
 +
 
 +
* '''Mistaken identity''': the witnesses have identified the wrong man.  Investigation, witness cooperation and skilled questioning are needed to show that there was human error.
 +
 
 +
* '''Misinterpretation of the evidence:''' some facts are not always accurate.  Testing of materials and forensic training are helpful to show that first impressions are not always correct.
  
−
: the witnesses have identified the wrong man.  Investigation, witness cooperation and skilled questioning are needed to show that there was human error.
+
* '''Insanity:''' An expert is need to testify that the accused was not sane -he was someone else-- at the time of the criminal act
  
−
+
'''Battered Woman Defense'''
  
−
is need to testify that the accused was not sane -he was someone else-- at the time of the criminal act
+
A Battered Woman Defense should be raised if a woman is repeatedly subjected to any forceful physical and/or psychological assault over a period of time.  Generally, a battered woman must have been assaulted more than one time and remained in the not easily fit into the definition of self-defense.
  
−
10c Battered Woman Defense
+
'''Stages of Abuse: Many experts recognize three stages of an abusive relationship:'''
  
−
 
−
10c(1) Stages of Abuse: Many experts recognize three stages of an abusive relationship:
 
 
1. a tension building stage of minor threats and physical abuse;
 
1. a tension building stage of minor threats and physical abuse;
 +
 
2. the actual battering stage; and
 
2. the actual battering stage; and
 +
 
3. a period of forgiveness that can include love and affection.
 
3. a period of forgiveness that can include love and affection.
−
Relationships are complicated.  There are many practical issues, emotional issues and psychological issues that put strain on a relationship.  For example, financial concerns, the absence of love, resentment, are just some things that can strain a relationship.   
+
 
 +
Relationships are complicated.  There are many practical issues, emotional issues and psychological issues that put strain on a relationship.  For example, financial concerns, the absence of love, resentment, are just some things that can strain a relationship.   
 +
 
 
Many women in a battered relationship find that they cannot leave the relationship for reasons that range from dependency on their spouse for food and shelter, to psychological dependence based on their depression and their inability to change their circumstances.   
 
Many women in a battered relationship find that they cannot leave the relationship for reasons that range from dependency on their spouse for food and shelter, to psychological dependence based on their depression and their inability to change their circumstances.   
 +
 
The above scenario also applies to children who are physically and/or psychologically abused over time.  Unfortunately, it is common that the cycle of abuse continues through generations.  If an adult was abused or in an abusive family as a child they often continue the abuse as an adult.   
 
The above scenario also applies to children who are physically and/or psychologically abused over time.  Unfortunately, it is common that the cycle of abuse continues through generations.  If an adult was abused or in an abusive family as a child they often continue the abuse as an adult.   
−
10c(2) Signs of Abuse: Here are some traits to look for in order to support this defense.   
+
 
−
Bruising (old and new injuries)Injuries in time intervals (consistent with an abuse cycle)
+
'''Signs of Abuse:'''
−
Signs of broken items or replacement items  in the home
+
 
−
Witnesses testifying to seeing injuries or hearing loud arguing
+
Here are some traits to look for in order to support this defense.   
−
Reasons for a strain on the relationship
+
 
−
A history of abuse in the family of the assailant
+
* Bruising (old and new injuries)Injuries in time intervals (consistent with an abuse cycle)
 +
* Signs of broken items or replacement items  in the home
 +
* Witnesses testifying to seeing injuries or hearing loud arguing
 +
* Reasons for a strain on the relationship
 +
* A history of abuse in the family of the assailant
 +
 
 +
----
 +
See [[Vietnam | Vietnam Criminal Defense Manual]]

Latest revision as of 10:52, 27 July 2010

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