“I disapprove with what you say, but I will defend to the death your right to say it”Voltaire
These words are said to reflect the thoughts of the French philosopher Voltaire (1694 – 1778) but were not actually attributed to him. Despite the uncertainty of its origin however, these words pretty much sum up the role of a defence lawyer. There are three broad mutually exclusive scenarios facing a defence lawyer when taking instructions from an accused client.
The accused pleads guilty
The first scenario is when the accused owns up to the offence as charged and instructs that a plea of guilty will follow. The role of the defence lawyer then is to prepare what is referred to as a plea-in-mitigation for sentencing. This means taking a detailed history from the accused, understanding the family make-up, schooling and educational background, employment, any prior convictions and most importantly reasons for offending. Requesting the court to order various reports like a Pre-Sentence Report, Psychological Report or Psychiatric Report depends on whether the accused presents with obvious mental health concerns.
Guilty but defend the charge
The second scenario and certainly the more problematic one is when the accused tells the defence lawyer that they are guilty along the lines of: “I did it” but then instructs that they intend to defend the charge. The role of the defence lawyer is to then to prepare the case for trial. However, in doing so the defence cannot lead evidence that misleads the court.
For example if the accused was present at the time of the offence the defence cannot cross examine say the complainant along the lines that the accused was somewhere else, or in evidence-in-chief allow the accused to say he or she was not at the scene at the time. In other words the defence cannot permit the accused to lie to the court. To do so would be to mislead the court and the consequences for the accused and defence lawyer could be imprisonment and invariably the defence lawyer faces being struck off the Roll of Practitioners.
The approach is to advise the accused to remain silent throughout the trial, that is to not get up and give evidence that might amount to perjury, and the defence lawyer will not cross examine a prosecution witnesses in a way that even hints of a defence. In other words let the prosecution prove its case.
Pleading not guilty
The third scenario is when the accused denies any wrongdoing and pleads not guilty. The defence lawyer then prepares the trial according to the accused instructions as to the facts of what happened or didn’t happen. The defence lawyer will also look at the charge as stated initially on the Prosecution Notice and compare the charge with what is said on the Statement of Material Facts to make sure the stated facts make out the elements of the charge.
The defence lawyer will then refer to the legislation that pertains to the charge and legislation that governs the procedures leading up to trial.
The defence lawyer will also consider other aspects of the case, such as the admissibility of evidence having regarding to the prosecution’s witness statements, whether the accused was given their rights if the accused participated in an electronic record of interview for instance, body- cam footage of the police officers involved in the search and arrest, police running sheets and incident reports, police statements and any hand written notes, statements of prosecution witness and any forensic and medical reports as the case requires.
The defence lawyer will also try to identify any witnesses that can be called by the accused such as alibi witnesses to say the accused was somewhere else at the time of the offence. Expert witnesses could be called to give an opinion on, for example DNA and fingerprint evidence. Or, forensic psychological evidence about the mental state of the complainant, for example in historical sexual offence cases and other prosecution witnesses are the case requires.
The defence lawyer’s preparation for trial demands a systematic, logical and encompassing approach. A lot of thought goes into looking at the facts as presented by the prosecution, the client’s instructions in response to those facts and to develop a case theory to challenge the prosecution witnesses.
The job of the defence lawyer is then to bring to bear evidence for the defence to support the defence case theory and to develop approaches to undermine prosecution witnesses in such a way that the witness’s evidence cannot relied upon.
Making sure the accused client is kept informed and involved in material ways in the development of a defence case capable of devastating a prosecution case is fundamental to the preparation process.