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

From Criminal Defense Wiki
Jump to navigationJump to search
 
(7 intermediate revisions by 2 users not shown)
Line 39: Line 39:
 
'''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!   
Line 379: Line 379:
 
* A reckless act that causes physical injury
 
* A reckless act that causes physical injury
 
* The victim is placed in fear by an action or an object
 
* The victim is placed in fear by an action or an object
−
 
−
 
  
 
'''Theft:'''
 
'''Theft:'''
Line 389: Line 387:
 
* The accused possessed the property
 
* The accused possessed the property
  
−
8a(4) Robbery:
+
'''Robbery:'''
−
 
−
 
−
 
−
 
−
 
−
 
−
 
  
−
8a(5) Crimes Before the Act
+
* Property is taken from an owner
−
of a crime
+
* There was use of force or threats
−
a crime by solicitation
+
* With a weapon
−
the intent to enter an agreement with one or more persons to commit a crime and one person acts to further the conspiracy.
+
* Without a weapon
 +
* Injury accompanies the act
 +
* The value of the item taken
 +
* The accused possessed the property
  
 +
'''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'''
−
 
−
 
−
 
−
 
  
−
9a(3) Reckless
+
* Clear knowledge
−
An action outside of accepted behavior
+
* Certain, firm action
−
Practice Tip No. 11: Memorize the four mental states as defined in the VCC, Articles, 9, 10, 11 and 12: Intentional, Unintentional, Unforeseen, Nonimputability.
+
* 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:'''
 +
 
 +
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'''
  
−
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. 
+
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.  
−
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.
+
 
−
+
'''Practice Tip No. 13:'''
−
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.  
+
Justification Defenses are found in the VCC at Articles 13 & 14.   
−
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'''
−
 
  
−
: the witnesses have identified the wrong man.  Investigation, witness cooperation and skilled questioning are needed to show that there was human error.  
+
* '''Alibi:''' the accused was not at the crime scene.  This defense requires witnesses or some other type of documentation.
  
−
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.
+
* '''Mistaken identity''': the witnesses have identified the wrong man.  Investigation, witness cooperation and skilled questioning are needed to show that there was human error.  
  
−
: An expert is need to testify that the accused was not sane -he was someone else-- at the time of the criminal act
+
* '''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.
  
−
10c Battered Woman Defense
+
* '''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'''
 +
 
 +
 +
 
 +
'''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

Retrieved from "https://defensewiki.ibj.org/index.php?title=Vietnam_Criminal_Defense_Manual_-_Preparation_of_the_defense&oldid=4888"