Going Deep into the Issue of Criminal Advocacy - Assignment Example

Criminal Advocacy (Ans 5: Psychology and the Law) Introduction: In a criminal trial, one of the most important rights that will accrue to any personaccused of a crime is the constitutional right to every aspect of the due process of law that will ensure that his or her guilt is established by “proof beyond a reasonable doubt.”1 However, Treschel identifies the inherent possibility for miscarriages of justice, especially in criminal trials, where the public prevailing opinion against the individual which may be propagated through the media or public opinion, or even political motivation and advocate machinations, may deem the individual to be guilty before he/she has actually been discovered to be so through due process of law.2 Advocacy that is geared towards misrepresentation of facts through an appeal to the emotions of the jury members or by browbeating a witness3 is a reprehensible aspect that introduces unfairness to one or the other party and distorts the facts of the case. While criminal advocacy mandates an understanding of human nature and a gift for deduction of the facts4 the client centered approach can sometimes focus exclusively on the client/defendant’s problems results in lawyers acting in an immoral way and being indifferent to the morality of the law or the need to maintain ethical standards in the practice of law.5 This may seriously undermine the fairness of trials and result in suppression, manipulation or fabrication of evidence or unfair trials where a miscarriage of justice can occur. Role of advocate for the defense: In a criminal trial, the role of the advocate for the defense is to provide the best possible support and defense to ensure that if his client is guilty, such guilt is established beyond any reasonable doubt. One example of a miscarriage of justice that occurred through improper judicial procedure, presentation of evidence and improper disclosure of relevant information is the sentence that was imposed upon a young boy named Fergus in 1991. He was identified in Court by a person who was four years older, but the truth was that the boy was innocent in this case. Two years later, he appealed the conviction in Court6 and this time, his advocate was able to point out that certain evidence had remained undisclosed, contrary to the common law of disclosure as enunciated in the case of R v Ward7. Thus it was determined that a miscarriage of justice had taken place and that the boy Fergus had been wrongly convicted, because the plea of the advocates for the prosecution to question the witness was granted, since the defendant’s advocate failed to represent his best interests and ask for an identification parade. Similarly, in the trial of Bruno Hauptmann for the kidnapping and murder of the Lindbergh baby, there were several unresolved questions and irregularities which remained unaddressed8 however the advocacy skills of the prosecution in manipulating the witnesses and appealing to the emotions of the jury by focusing on the horrors of a little child’s death resulted in a conviction. One of the most famous advocates in England – Edward Marshall Hall – was able to use his persuasive skills and his abilities as an actor to secure several judicial outcomes in favor of his clients who were defendants in murder cases.9 Despite the fact that Hall did not possess a solid grounding in the law, he was nevertheless able to plant sufficient seeds to support the presumption of innocence of a defendant in the minds of juries, which resulted in the exoneration of accused persons such as Robert, Wood, Edward Lawrence and Herbert Greenwood who were tried for murder.10 He possessed masterful skills in manipulation and playing upon the emotions of a jury to present the appearance of truthful defendants and prejudiced judges. However, he was able to secure such releases for his defendants only in cases where the circumstantial evidence was not tilted against them and where the role of the advocate as a skilful player upon the instrument of emotion could be called upon. As a result of such manipulations by advocates in Court, the underlying objective of the law and the exhaustive criminal adjudication process to uncover the truth may be severely compromised and the net result could be that guilty defendants get away scot free or that innocent ones are convicted. For example, advocates may even try to enhance or detract from the appearance of the people they represent in order to secure verdicts in their favor or against. In a study conducted by Kulka and Kessler11, it was demonstrated that attractiveness of the defendant was a factor affecting the outcomes in criminal trials encompassing a wide variety of offences, and the results of this study were also corroborated in other studies12. As a result, shrewd advocates would tend to emphasize the attractiveness of their clients as being predisposing factors that bely a criminal intent and thereby secure their release or mitigated sentence. Conclusions: From the above submissions, it may be concluded that in several instances, the integrity of the criminal justice process may be compromised by unscrupulous advocacy that is client centered and is not hesitant about utilizing the tools of psychological manipulation in order to secure desired outcomes that may not necessarily be in line with a just outcome. Justice McHugh has also commented on the history of the right to silence of defendants accused in criminal cases and adopted the position that the right to silence allowed to the accused was no more than an “invention of lawyers” to protect their clients from incriminating themselves13. From playing upon the attractiveness of the defendant, to shrewdly manipulating the jury through manipulation of evidence or the use of psychological aspects, advocates may thus be guilty of utilizing tools that in fact circumvent the process of true justice in criminal cases, where the long drawn out trial process is intended to ensure that only a defendant whose guilt is proved beyond a reasonable doubt is convicted. However, this cannot be the basis upon which the skills of advocacy are directed towards ensuring that guilty defendants are let off the hook and are not brought to justice. Therefore, advocacy is like a sharp two edged sword that must be used with discretion and integrity at all times, if just outcomes are to be achieved. Bibliography * “Jury trial: Defendant in a Federal criminal prosecution cannot waive his constitutional rights to a unanimous jury verdict.” 1953. Virginia Law Review, 39(8) : 1101-1103 * Kulka and Kessler, 1978. “Is Justice really blind? The influence of litigant attractiveness on judicial judgment.” * Majoribanks, Edward. Comments of John Mortimer in “Introduction to Famous trials of Marshall Hall.” (slide 78) * Riley, J. “The Little Red Book of Advocacy” * Stewart, 1980. “Defendant’s attractiveness as a factor in the outcome of criminal trials: An observational study.” * Treschel, Stefan, 2005. Human Rights in criminal proceedings, Oxford University Press. * Warrerstrom, Casebook, p 15 ( Law 00159, at 2.9) * www.ni.com.lindbergh Cases: * Azzopardi v The Queen (2001) 205 CLR 50 at 101 * R v Fergus 98 Cr App R 313 * R v Ward (1993) 1 WLR 619 The Theme of Justice in Film (Day 7- expert Evidence) Introduction: The course of justice is hardest to maintain when the accused victim is vulnerable because he belongs to an ethnic minority race that may be publicly perceived as prone to committing crime. In such cases, it becomes hard to overcome the stereotypes in order to establish the innocence of the victim, so that despite the fact that shaky evidence or unreliable witnesses disprove the requirement of proof of absolute guilt, an accused person may nevertheless be convicted, contrary to the protection provided under the law for an innocent person. The film “12 Angry men” illustrates how one such victim who could have been convicted by a majority vote of a trial jury is saved by the rhetorical skill of one lone juror who believes in his innocence. As opposed to this however, the novel “To kill a mockingbird” demonstrates how an innocent man is convicted for a crime he did not commit, despite the fact that the best advocacy skills had established his innocence in a court of law. Both these works also raise the issue of the role that may be ascribed to expert evidence in the dispensation of justice. While in the former work, shaky evidence could have condemned an innocent adolescent, in the latter the accused is convicted despite overwhelming evidence indicating his innocence. Therefore, both these works poignantly illustrate how difficult it is for minorities to fight against their existing stereotypes in society in order to secure justice. They are both notable examples of how justice can be a travesty where vulnerable accused victims are concerned, unless care is taken to ensure that the criminal justice system is strictly implemented and for this reason, both two works have made a deep impression on me. Comparative storylines: In the film “12 Angry men”, an uneducated, Puerto Rican adolescent is on trial for murdering his father with a switchblade. The jury of 12 all white, all male, mostly middle class men retire to the chamber for their deliberations. Only one juror has a dissenting vote of not guilty. At first the others are impatient to get it over with and declare their verdict of guilty, but the lone juror slowly and persistently forces the other members to re-examine the shaky evidence against the defendant and the unreliable eye witness testimony. He also points out that the court appointed attorney had not tried to serve his client’s best interests and had further compromised the defendant’s case. On this basis, heated exchanges and discussions take place between the other members of the jury, revealing deep rooted prejudices and biases. The fact that the accused was poor, of a minority race and from a disturbed family background automatically stereotypes him in the minds of the other jury members as a guilty person. It is only one juror who is uncomfortable about the way everything appears to fit a preconceived outcome – “Everybody sounded so positive. I began to get a peculiar feeling …..nothing is that positive.” This is where the process of questioning and reasoning begins, where even the so called “expert testimony” is found to be questionable. The arguments bounce back and forth, anger and uncomfortable feelings are unleashed in that closed room, but the outcome is that the existence of a reasonable doubt of the accused’s guilt is acknowledged by all the jury members and the boy is exonerated. In the case of the novel “To Kill a Mocking Bird” the poignancy in the story is in the fact that the law is unable to serve the accused victim in a criminal trial in the face of the extreme prejudices of the society that he moves in. Justice is compromised right at the beginning by the accused’s race which places him in the category of a vulnerable witness since the odds are already stacked against him. During the course of the trial, it is clearly established that the position of the wounds on the victim indicate that a much smaller man had committed the crime, just as the same wounds also depict the fact that a right handed person is guilty while the defendant is left handed. Despite these glaring inconsistencies however, the defendant is still slapped with a sentence of “guilty”, therefore the facts uncovered through expert testimony in the case in regard to the position of the wounds, etc becomes completely immaterial and meaningless when faced with the extreme prejudices in the minds of the jury that are the result of stereotypes. Thus, in this case, an opposite result is achieved to that in “12 Angry Men” and an innocent person is convicted, despite expert testimony and facts of the case that point to his innocence. Miscarriage of justice: The case of Judith Theresa1 is one of the best examples of the miscarriage of justice in terms of legal impropriety in the disclosure of material evidence and the role of experts and forensic scientists in providing evidence, and the movie “12 Angry men” similarly demonstrated the shakiness of such expert evidence. As Justice Garry Downes points out, new trends in litigation expert evidence tends to conceal facts that could be disadvantageous for a particular party2. The cases of Lowery (Christopher Russel) v The Queen3 and the case of R v Turner4 since both of these cases had dealt with the question of unreliability of a conviction made on the basis of confessions, which would have been relevant in the case of the black man accused in “To Kill a Mockingbird.” The case of Sally Clark and Angela Canning 5 is yet another example of the miscarriage of justice that occurred due to misuse of expert testimony and evidence by scientific experts. The question of reliance on expert testimony and forensic evidence were the major points of contention in the appeal of Sally Clark and Angela Cannings, since this issue had already been raised in the issue of other cases such as that of the Birmingham Six9, who had served 16 years in jail after being convicted on the basis of faulty forensic evidence and were released in 1991.10 Conclusion: The problem of bias in expert evidence is one that is a serious and recurrent problem5. Certain categories of evidence are being developed as a result of technological advances and in many instances their use has been deemed to be controversial. One of the most notable examples of such evidence is DNA analysis. The probability of obtaining the same profile of DNA in two different persons is about 1 in 100,000 or 1,000,000, therefore a DNA analysis has been conclusive in establishing guilt in many cases (Fischetti, n.d). But DNA evidence is controversial because in many instances, it is being found to be inconclusive and unreliable because it weighs too significantly as a factor in the judges’ decisions, so that they tend to ignore other aspects which must also be satisfied before guilt can be established. Fibres and hairs left at the scene of a crime are used by forensic experts and these are considered to be reliable evidence. However the problem with such evidence is the fact that fibre is not unique and is best understood in forensic science as a “class characteristic.”(Ramsland, no date). Evidence plays a role in both the Mockingbird film and the 12 Angry men film. It is bias that convicts the black victim in Mockingbird despite expert evidence pointing in his favor and shaky evidence would have convicted the Peurto Rican teenager but for the courage of one lone juror in enforcing the true judicial process. Both these works demonstrate how vital is the preservation of the integrity of the justice system and all its participants, including the jury and advocacy. Bibliography * Fischetti, Mark, No date. DNA as a forensic instrument [online] available at: http://www.columbia.edu/cu/21stC/issue-1.3/dna-forensic.html * Forensic Science on Trial pp 64 [online] Available at: http://www.publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96i.pdf; accessed 12/18/2006 * Ramsland, Katherine. Trace evidence [Online] available at: http://www.crimelibrary.com/criminal_mind/forensics/trace/3.html * “The problem of bias” (slide 21-23) Supreme Court of New South Wales Annual Conference, Sept 1999, The Hon Justice H.D. Speding. * Twelve Angry men – Film * Harper, Lee. “To Kill a Mockingbird.” Cases: * Lowery (Christopher Russel) v The Queen (1974) AC 85 * R v McIlkenny (1992) 2 All ER 417; 93 Cr App R 287 * R v Turner (Terence) 1975 CLY 762 * R v Ward (1993) 1 WLR 619 * Sally Clark [2003] EWCA Crim 216   Read More