19 laws of criminal defence: a lawyer’s reflection after ten years of swimming with the sharks.
A decade ago, I became a criminal defence lawyers. A lot has changed since 2005.
There is a drastic shift in ideology towards the prioritization of punishment and vengeance, over rehabilitation and meaningful public protection. Law and order initiatives have become politicized, inflammatory, and divisive. Access to justice for the vast majority of Canadians is either a dream or a crushing financial burden. This crisis is fuelled further by the over-complication of case law, procedural hurdles, and demands upon counsel that add only the efficiencies of the Court and state, and nothing to counsel and therefore the consumer, the client.
Technology has shifted the manner in which trials are conducted. Our evidentiary footprints are everywhere our clients go as citizens. We are tracked and traced through cell phones, internet, DNA, cameras, and GPS. What was once impossible to prove, has become easy through advancements in investigative techniques and evidence gathering.
Clients, witnesses, juries, judges, and police have all become more sophisticated. Gone are the days when quoting a few lines of Shakespeare and the history of the Magna Carta impressed juries; gone are the days when an aggressive cross-examination would shake a police officer and offer something up for argument.
For all these reasons, defending clients has become more challenging. It requires us to not just understand the law, but also place greater weight on the experience and lessons we learn during the course of defending clients charged with crimes. It requires us to become more introspective and honest with ourselves in what does and doesn’t work in our profession.
So much has changed that it is hard for younger lawyers to have any appreciation of how things were even 10 years ago. The juridical river we stand in 2014 is not the same as the one I stood in 2005. The wool of my robes is starting to disintegrate as significantly as my hair is greying. Despite this and everything mentioned above, a few things remain uncharged. Below is a collection of what I have come to see as some of the intractable tenets of criminal law practice.
1) There are lies, exaggerations, and bias everywhere; trust nothing except the evidence and understand its worth.
First and foremost, the practice of criminal defence is a human process. With any human process comes biases, motivations, frailties of recollection, unreliability, mistakes, and outright lies. No category of witness is immune to these problems. That is why the only thing you can rely upon is the evidence.
What is said, heard, and experienced in Court is akin to Plato’s Allegory of the Cave. It matters not what “happened” outside the cave, it matters what can be “proven” or undermined within it. One cannot, as an effective defence lawyer, think that the “truth” will somehow prevail and shine light upon the dark recesses of the misleading evidence through its own Idealistic power. In practice, defence lawyers rarely (if ever) knows what really happened. The same can be said for the Crown, the judge or jury, or police. For that matter, both the accused and complainant may honestly believe in their version being the right one even though they are diametrically opposed. Ironically, we all proceed with the premise that our efforts is to reach the truth, even though no one in the room can honestly agree on what that may be. As Nietzsche said:
“What then is truth? … in short, a sum of human relations, which have been enhanced, transposed, and embellished poetically and rhetorically, and which after long use seem firm, canonical, and obligatory to a people: truths are illusions about which one has forgotten that is what they are; metaphors which are worn out and without sensuous power; coins which have lost their pictures and now matter only as metal, no longer as coins.”
What this means in practice is that it is more about persuasive evidence that it is seeking an conclusive ideal that is not obtainable. If inaccurate evidence is more persuasive that truthful evidence, then that inaccurate evidence will prevail. An expert testifying about “gang culture” and interpreting “street lingo” may be ridiculed in the actual street for coming to such conclusions, yet before a jury, it seems credible, persuasive, and will convict people in most circumstances.
Guy Paul Morin was convicted on the basis of hair sample “matches” that ultimately turned out to be completely flawed and wholly unreliable. Yet, at the time, that evidence was persuasive. Never forget that when assessing and advancing your case, do not have faith in what you see in the truth; have faith in thoroughly understanding the evidence presented. Do not seek to escape the Cave, embrace it. The true Forms of evidence may exist somewhere, but it matters little in the allegorical cave of a courtroom.
2) Juries thinks a defendant is guilty the first moment they lay eyes on him: you have to convince them otherwise.
The presumption of innocence is a legal principle, not a matter of fact.
In Canada, a jury trial typically commences with a pool of 100-200 randomly selected community members coming into a large courtroom to await the Court Registrar to read out their name. Before a jury trial commences, I always ask my client “What do you think all those people are thinking when then come into that courtroom?” Few can answer. I say: “Nearly every singly person in that room is looking at you and thinking “What did he do?”
The presumption of innocence is something that is ingrained upon us in law school as the “Golden Thread” of criminal law; however, this has little application in the real world. Yes, juries are instructed to abide to this fundamental maxim as the only way a person is granted a fair trial. However, it is naive to think that the majority of people on a jury truly see your client as innocent until proven guilty. I’m not suggesting that jurors do not take their role and instructions seriously, but it is human nature to assume that police only arrest the right people and it is hard instinct to ignore.
Therefore, it’s better to start with the assumption that the jury thinks your client is guilty and it is up to you, the defence, the prove otherwise. Approaching it in this manner results in an overcompensation at worst; the converse will result in a conviction.
3) The right to silence is the most powerful and under appreciated right an individual has when under police investigation.
Humans beings are speaking creatures. We can’t help ourselves but to talk. When a person is arrested, this urge is amplified tenfold. We view silence as tantamount to deceit. Even guilty people appreciate this and do not want the police to believe they are so they they talk…and talk…and talk. In every day life where people are generally going to accept your explanation this is understandable. What people fail to realize is that if a person is a suspect in the eyes of investigators, statements are not sought for “explanations” but for “evidence”. Suspects are hopelessly confident that they can either a) outsmart police if guilty, or b) show them why they are innocent through words alone. Both approaches fail miserably time and time again.
I will concede there are occasions where a person clarifying a situation may convince police of a suspect’s innocence. The difficulty is that the suspect never knows what the investigators’ true views are of the person or what evidence they possess.
Police are under no obligation whatsoever to be truthful with a suspect (as this would quickly put an end undercover police work). Indeed, the Supreme Court of Canada has said clearly that police may use deception in investigation so long as it is not so offensive that it would shock the conscious of the community. This is a very high standard that is rarely met. Even recently, the Ontario Court of Appeal found that police posing as a religious spiritual advisor to obtain a confession was not over the line.
Other example include lying to suspects about what other people told them, advising a suspect of DNA or other scientific evidence that doesn’t exist, lying about failing polygraph (lie-detector) tests, and so on. Suffice to say that speaking to police is not the type of conversation we are used to in our day-to-day lives. Police enter these interviews as investigators with specific purposes, and with a wide arsenal of highly sophisticated police techniques that exploit weaknesses of human psychology. All of which can take place over several hours of ceaseless questioning even in face of repeated demands of the accused that they wish to remain silent. The idea that a person can outsmart police, or convince them of their innocence (even if factually true) is incredibly naive and reckless.
Fortunately, citizens do have a right to silence. However, this powerful right of an accused does not come easily and takes a great deal of fortitude of a person to remain silent in the face of some of the factors noted above, particularly if the person is not aware that police can engage in these sorts of tactics. In the end, most people talk when police seek statements, but those that don’t are those that have an exponential chance of winning their case – innocent or not.
4) Everyone wants to win.
No one likes to lose, particularly when your success as a lawyer is largely determined by winning cases. People hire lawyers to win and lawyers aim to deliver. Police like to “solve” cases and seek to achieve this “victory” as much as a defence lawyer seeks to have their client acquitted of the charges. Even Crown Attorneys are not immune to the pride in winning a case. Crowns are told that they are “Ministers of Justice” and I have no doubt that nearly every Crown takes this role very seriously; however, “justice” on one side, is very different to “justice” on another. Like history, “justice” is determined by the victors.
Both the defence and Crowns seek to obtain the most “just” result but that objective is diametrically opposed. To a Crown, justice may be holding the the child molester behind bars, to the defence lawyer, justice may be ensuring that the accused child molester is not convicted of something they didn’t do. Neither “know” what the right, or “just” result is but both want to win once convinced a certain position is correct. This is the very nature of the adversarial system. It is premised upon winning and losing, guilt and innocence, freedom and incarceration; yes and no, black and white. In short, winning drives us as lawyers because we (generally) believe that us winning our case is justice.
5) The criminal court proceeding is a human process.
Applying the law is not mechanistic; it is a human process that comes with the strengths and weariness of any other human activity. Sometimes the human element is a benefit to the client and other times it is not. Judges and juries make mistakes; lawyers make mistakes, witnesses and clients make mistakes. On the other hand, humans are sympathetic, have an uncanny ability to recognize (and conceal) the truth, and understand the context of one’s environment better than anything else we are familiar of in the universe.
Along these lines, a typical judge or jury brings their life experiences outside of the law. Judges and juries are not only entitled to use their life experiences, but encouraged to do so. However, life experiences can also hinder how we look at the world. Individuals may be bias by stereotypes or belief systems that are not as objective as they might think.
We, as lawyers, need to appreciate that our view on the world is not the same as a particular judge or the collective view of a jury. In order to be persuasive, we need to explain to our clients, and help them explain to us, how we can assist the trier of fact in understanding their viewpoint on the world and how that may affect the outcome of a particular case. If something like technology is important to the case, a lawyer cannot assume that the judge or jury understands.
In the end, that judge or jury may still not comprehend the set of circumstances, lifestyle, or terminology of your client that would justify or explain their actions but the starting point is understanding that the attempt is necessary as a matter of persuasion. It is incumbent upon us to realize that formalistic language will not persuade, the best of us make mistakes, and that Court is more of an art than a science. Understanding the human element to a trial is as important as understanding what your client is charged with.
6) Saying “sorry” makes a difference no matter how much trouble you are in.
Whether a person is charged with stealing bread or killing another human being, saying “sorry” has a profound effect upon how that individual is treated as a matter of punishment. An apology has to be genuine, complete, and unequivocal. With those three elements, there is nothing else in the world that can change a person’s view and feeling towards another so profoundly. I have seen mothers of sons shot dead forgive the killer simply because they apologized. I don’t understand why, but I understand how significant this phenomenon is.
In the context of Court proceedings, I have witnessed the most cynical and cold of judges turn lenient with the expression of a proper apology. Strangely, many defence counsel tell their clients not to say anything at the time of sentence when the judge asks if they have anything to say. Although this may be appropriate in circumstances where the client is convicted after trial and seeks to appeal, it is borderline negligent in my view when a person is pleading guilty. If your client is sorry, then let him say so.
All of a lawyer’s complicated legal submissions, case law, tools of rhetoric, and pontificating on proper sentencing principals pale in comparison to a judge believing your client when they say “I’m sorry Your Honour, I messed up and I accept that and ready to be held accountable.” As the saying goes: to err is human; to forgive is divine. However, forgiveness starts with an apology; and apologies precede miracles of absolution.
7) Judges and juries place too much reliance on expert evidence.
There are two fundamental problems with expert evidence: a) we (i.e., lawyers and the Court) do not know or understand the subject matter the expert is testifying to, and b) the Court is not permitted to do their own research on the issue to determine the veracity, accuracy, or reliability of the “expert” witness.
Although there are safeguards as to what is permitted in expert evidence, there is still an overabundance of what is accepted but the Courts, or placed before a jury, in the realm of expert evidence. Even when lawyers are in the know that something is nonsensical or contrived, they are left battling an expert who by their very qualification by the Court, outranks the lawyer on the questioning of subject matter. In this day and age, there is an expert who will testify to virtually anything retained to do so. This works towards injustice for both the defence and the prosecution.
The best one can do is find a more compelling expert than the next and engage in the “battle of experts” that the Courts loathe, yet accept as an inevitability of litigation. In my view, the solution comes in ensuring the experts’ appreciate they are acting as officers of the Court, and not as adversaries to the opposing side.
Perhaps some day all experts will be appointed by the Court so they are mutually agreed upon by both parties. Until that day, people will continue to be convicted wrongfully, as will guilty people continue to be acquitted.
8) Get your retainer up front; what you have in trust at the end of the case, is what you are paid.
A simple rule that will apply to 95% of your clientele: if the money isn’t in trust when the case ends, you will not get paid.
People who are acquitted will feel that they were innocent and did not need a lawyer; those that are found guilty feel you let them down – or worse, are in jail and have no intention or means to pay you.
9) Prepare, prepare, prepare, and when you are done doing that, prepare some more.
Despite limited retainers and time constraints, a lawyer can never prepare enough for trial.
There is always more research and investigation to be done. There is always another angle the opposition is considering that you are not. There is always an obscure legal issues that you have not considered. Inevitably, we will run out of time and coffee, but there is always something more than can be done. In every case you lose as counsel, even ones thoroughly prepared, you will always think there was more you could have done.
Do not ever think that your intelligence and abilities alone will win cases – even the most talented athletes in the world prepare for important games. If you can combine honed abilities, intelligence, and legal acumen with solid preparation, the more likely you are to win your case, it’s as simple as that.
10) Choose your rodeo horse and stay on it.
Many young counsel are insecure with their abilities and overcompensate by throwing as much muck against the wall they can in hopes that some of it will stick: a common and tragic mistake.
Imagine you ask your son if he took a cookie and he said “No, but if I did, my rights were breached, I was acting in self-preservation, I was under duress, and/or I was highly intoxicated on juice” …not very believable, and equally compelling before a jury.
Not every trial can be reduced to one or two issues, but most can. Most trials are really just about one thing. Self-defence? Alibi? Lack of evidence to prove the case beyond a reasonable doubt? Identification? Intoxication? Whatever the issue may be, chose your horse and ride it.
Define the issue and let the Court or jury know at the earliest occasion so they can focus. I can say with certainty that if your best defence is going to be lost, then so are the other seven that you have tried to make into a terrible tasting criminal defence stew. At least by choosing one you benefit from the persuasive effect of brevity and confidence.
11) Juries and judges want to hear an explanation, regardless of your right to silence.
It is a fundamental legal principle that a person has a right to silence. That silence cannot be used to convict someone or taken as a tacit admission of guilt or wrongdoing. Here is what a judge would theoretically think and what they would instruct a jury to do in assessing silence, or an accused’s failure to testify:
And notwithstanding the above, this is what a jury is likely thinking:
“If it was me, and I didn’t do it, I would be up there testifying.”
I suspect this line of thought might cross a judges’ mind from time to time as well. In addition to that, a judge knows that if a person testifies they can be cross-examined upon their criminal record if they have one – this may lead them to believe the accused has a record. The judge is obligated to dissociate these sorts of thoughts and reasoning, but as mentioned above, it is a human process.
Therefore, if your client is innocent, let them testify. So what if they are cross-examined. Every other witness was cross-examined and had to withstand your questions. If you want to persuade, and there is no overriding reason other than fear and laziness in preparation, your client should hit the box.
12) Crack cocaine, heroin, and crystal meth ruins lives.
If you ever want to know how awful of a drug crack, heroin, and crystal are, just go to any bail court and watch the lost souls that come before it. Hard drugs like these take everything. There is no will to live, only to get high. There is nothing to look forward to in life other than the next fix. Such a dependency will inevitably lead to repeated and lengthy jail stays, or an early death, and in many cases, both.
Time and time again, clients come before the Court because of drug addiction and the inability to control impulses once addicted. These drugs form horrible additions that manifest recurrently and painfully in the criminal justice system.
On topic, criminal justice does not fix this problem. If anything, it aggravates it by initialling punishment and futility. Put simply, people cannot be punished into health, hope, self-worth, or an alleviation of pain.
13) You must leave the turmoil of the battle in the arena.
What we do as defence lawyers is very real, very raw, and very draining on our psyche and the optimism we may have for the human race. We frequently see suffering, violence, deceit, addition, hopelessness, and abuse of powers. We see the worst part of human nature more often than most people see sunny skies.
It’s important, therefore, that you do not get caught up in our clients’ turmoil and assume it as your own. Our clients lead tumultuous lives, they do terrible things, they are convicted of things they did not do, they are sometimes beaten badly, they may have drug addictions, children in foster care, shocking childhoods that left them no chance, or perhaps they are downright psychopathic. Whatever it may be, as a professional you must learn to detach these human stories of tragedy with your own life.
I remember very early on in my career when I was still a summer student interviewing a client who described what was blatant racial profiling by police. Shocked, I ran to my principal to pass on the information of something I thought as a rare occurrence that would send shockwaves through the criminal justice system.
My seasoned principal looked up from the desk and said ever so calmly “Ok. Prepare the motion then and we will see what happens.” Not only did I learn from experiences like this that that these sorts of events are not rare occurrences, but it does not achieve anything by getting riled up and taking on the emotions as your own.
Like a surgeon in an operating room, we must be calm, objective, assess the pros and cons of our approach, and above all, remain professional. Once you cross the line of making these things personal to your life experience, then you not only grind down your should, but you also become a less effective advocate. Believing in a client’s innocence affects judgement in the same manner in believing in a client’s guilt. We are professionals who must look at the evidence, disengage from the emotions from what is or has happened, and do our role to assess, undermine, and present evidence.
In truth, this is often easier said than done.
14) Innocent people are convicted of offences they did not commit.
- James Driskell
- Anthony Hanemaayer
- Donald Marshall Jr.
- Simon Marshall
- David Milgaard
- Guy Paul Morin
- William Mullins-Johnson
- Romeo Phillion
- Thomas Sophonow
- Steven Truscott
- Kyle Unger
- Erin Walsh
These are just those that are infamous. Every day injustices takes place that will never be publicized or recognized.
No one who is wrongfully convicted has ever thought it could happen to them but it does and that is something that will likely never change. We as defence lawyers can do a lot to ensure that these are minimized by never losing sight of that possibility that you client may be one of them.
15) Guilty people are acquitted of offences they did commit.
Conversely, people are acquitted of things that they did do. This happens for all sorts of reasons including weak evidence, uncooperative witnesses, poor investigation, accused who lie, the high standard of proof required of the Crown. As mentioned many times above, the criminal practice is a human process and with it come mistakes on both sides.
16) Many victories are won outside the Court.
Comedian Lenny Bruce once said “In the Halls of Justice the only justice is in the halls.”
Despite the satirical nature of this quote, there is a lot to be said for advocacy outside of the courtroom It may not be as sexy as cross-examining someone into tears but the results one can obtain outside the Court often overshadows what can be accomplished in the Courtroom. This is particularly so in the present day and age where the trend is towards resolution, efficiency, and preservation of Court resources. Not every case can be resolved, but many can and to the satisfaction of the client.
The biggest mistake I see young lawyers commit in this area is not strategizing the resolution process with as much seriousness as the trial itself. If lawyers put in even fifty percent of the effort in preparing reasons for withdrawing cases, they would be very surprised how often they obtain a shockingly good result.
Cases do get withdrawn, but it is not because you wear a nice suit. Charges get withdrawn because a lot of work, preparation, and strategy is done upfront by the lawyer and client with their guidance. As Sun Tzu once said: “The supreme art of war is to subdue the adversary without fighting.” I imagine he would also say that those victories come with hard work.
17) Cross-examinations are fun, but cases are won in chief.
There are so many great hollywood scenes where people break down and admit they are in fact the killer and not the accused on the stand, or that they ordered the Code Red, and so on. I have to admit, cross-examination is very fun and very exciting. I have even had many things to say about a good cross-examination in the past. However, even the best of cross-examinations does not win cases nearly to the degree that a good examination in chief does.
The easiest job in the world playing the role of critic; that is what you are doing when you cross-examine. Judges know this. Juries know this. What take real talent is preparing your client in such a manner that their version is polished, persuasive, and coherent. Generally speaking, clients are terrible at explaining to the Court what happen on the fly. They will riddle their testimony with unhelpful phrases like “Honestly, let me tell you what happened…” or “That’s when the cops came and I…” and so on.
Having a client testifying takes three traits that many lawyers have difficulty with: 1) confidence 2) humility, and 3) intense preparation.
A lawyer must look at their client and have the courage to think that they will do well. Often litigation is like a house of cards and we feel that at any moment the whole thing can come crumbling down.
Therefore, we feel that even the slightest soft breeze affecting our client’s credibility will shatter the case that we have toiled over. Which brings me to my next point on humility. Do not think that you can win the case because of your genius. I can’t tell you how many times I have heard lawyers tell me that their client “won’t do well on the stand” only to either lose the case, or be surprised when the client testifies. All too often our arrogance as lawyers thinking that we can single handedly save the day clouds the reality of the jury thinking that “unless I hear a good explanation, this guy is going down”.
So, once we get past one and two, it takes a whole lot of preparation to have a client properly testify. It includes cross-examining them before the Crown does, having a road map of the types of questions you will ask, and the theme of what is being presented and how it works into your defence. It is a lot of work. If a lawyer is simply going to tell their client in custody the morning of trial to testify and then ask “what happened?” then forget it, but if you want to win, then prepare, prepare, prepare.
18) Jail is an awful, unimaginably horrible place that very few people truly appreciate.
Very few people understand how awful jail is. Most of society is unsympathetic to this because they think a) it cannot happen to them, and b) they are all scumbag criminals in there.
Both premises are quite false. Jails are horrible places that house everyone from impaired drivers, to minor allegations of domestic violence, to possessors of guns, to traffickers of small amount of drugs, to alleged murdered, to people breaching their bail.
Even those inexperienced with the criminal justice system get to spend time with the most seasoned. Violence is not only prevalent, but expected. Hygiene is terrible; conditions intolerable. Yes I know, “Boo-F&*&-hoo.”
Well, until you have been to a jail and spoken to the people inside and understand what really happens, the type of people that are actually in there, and how horrible it is, you really should keep your hard line lack of sympathy to yourself. There is nothing easier in life to be unsympathetic to others when sitting in the comforts and safety of your home ignorant of what really happens inside jails.
19) Defence lawyers are hated by the general public.
People hate us, plain and simple. Maybe not our family and friends, but as a concept, we are loathed. We are the scum that defend scum. We are hired guns. We “get criminals off’. I have reached a point in my career where I couldn’t care less what people think about what I do. I know the importance of it and I know how little we would have as a society without us. I know that police officers, politicians, doctors, clergy, business people, and virtually anyone who would normally disparage us is quick to call us as soon as they, or their kids are charged.
I know that those people sit across my desk, like all my other clients, and smugly explain to me how a “mistake” was made and they are not “criminals” like most of my clients.
To which I often reply, “I am the only one that believes that right now”.
Author: Sean Robichaud, Barrister & Solicitor.