All witnesses for the prosecution and the defence are potential sources of information and may prove valuable to defence counsel. It has long been settled that there is no property in a witness and that a witness may be interviewed by both sides.
Of course, a lawyer wants to avoid the possibility of unwittingly becoming a witness and should therefore ideally have all witnesses interviewed by someone else, preferably an independent private investigator who may be called in the event that the witness later gives evidence inconsistent with any statement earlier provided. The importance of preserving in some independent fashion the previous oral and written statements of witnesses is highlighted by the various uses that may be made of previous statements under sections 9, 10, and 11 of the Canada Evidence Act.
Uncovering all the facts requires more than meetings with your own client and the client’s witnesses. Complete disclosure is paramount, although the issue of what can or should be disclosed in any given case is by no means uncontroversial.
The right of the accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence.One important source of information, of course, is that information in the possession of the Crown. The term “in the possession of the Crown” is now understood to include all information in the possession or knowledge of the police. In 1991, Justice Sopinka, writing for a unanimous court in R v. Stinchcombe1, reviewed the general principles governing the duty of the Crown to make disclosure to the defence, especially in the context of indictable offences. He concluded that the Crown’s general obligation is to disclose all relevant information, even if the Crown does not propose to adduce it at trial. His Lordship also noted, however, that the Crown’s obligation is not absolute. It is subject to the Crown’s discretion, a discretion extending both to the withholding of information and to the timing of disclosure.
The importance of the preparation of witnesses cannot be overstated. Most cases, in fact, turn on the performance of the witnesses. But there is no foolproof formula or method to prepare witnesses for trial. They come to us in all types and fashions, and many are, to say the least, a challenge. Some communicate easily and well, others only grudgingly and in monosyllabic grunts. Patience and preparation are all.
Witness preparation, difficult as it may be, is the first important step to changing the level of your success at trial.
We want our witnesses to be poised and confident and to possess great nimbleness of mind. The best way to approximate this ideal state, once all the facts have been gathered, assimilated, and represented in your trial brief, is to subject all potential witnesses, including experts, to an interview process no less rigorous than that of a cross-examination by a skilful prosecutor. The exercise will pay dividends because it familiarizes the witness with an important part of the trial experience and demystifies the process of cross-examination, calming the witness’s fears.
So far as practicable, you should try to provide the same sort of empathy and support to the witnesses who may be called in support of your client. They too feel vulnerable when they deal with lawyers. Who doesn’t? But witnesses feel more than usually threatened. Except for the fear of punishment that the accused alone may face, witnesses consider that they are very nearly in the same position as the accused. They are unfamiliar with and usually frightened of the trial process, so they are reluctant to be involved. They need to be made to feel that the lawyer has taken into account their interest as well as those of the accused. They must come to see that the lawyer representing the accused is competent to handle the trial and to present them before the court without causing them humiliation or terror.
As all trial lawyers know, the course of a trial is hardly ever wholly predictable. It ebbs and flows, developing its own rhythm, but is rarely without some mystery or surprise. This is part of the lure of trial work: precisely because of its unpredictability, the trial process is for some of us an endless, irresistible fascination.
Still, too much mystery, too much surprise, can be fatal to your client’s interests and to your own good health. Thorough, effective trial preparation tempers the element of surprise during a trial, so the more you know at the start, the better. In this modest effort, I propose to set out a few of my thoughts on how to develop a trial persona. A trial persona can only complement thorough preparation, not replace it.
Be Positive, Be Respectful
The best disposition for battle is a positive one. My former colleague, Harvey Strosberg, says: Trial is war, and the weak go to the wall. I say: Preparation and presentation, and now it’s time to get it done. A positive attitude is essential. If you are or feel defeated in your own mind before the case is truly over, then it truly is over. Continue reading “Developing a Trial Persona”
The work of a criminal law defence lawyer is both challenging and complicated. To achieve success for you, a criminal law defence specialist must possess a deep understanding of criminal law and a reputation for skill and courage in the courtroom. For over twenty years, Patrick Ducharme has been providing effective, informed, creative, and successful legal representation to his clients in a wide range of difficult and high profile cases.
Patrick’s innovative courtroom techniques and strategies have long been recognized by his colleagues in the profession. In February of 1990, the Law Society of Upper Canada, recognized Patrick with the prestigious designation of Criminal Law Specialist, an honour given only to those who have displayed excellence over many years. Patrick was also appointed to a committee to determine what other lawyers in the province deserved to be recognized similarly. The Honourable Allan Rock, presently Canada’s Minister of Justice and Attorney General, honoured Patrick by selecting him to sit on the Criminal Law Specialist Committee.
No great art is achieved without sacrifice. The best actors, writers and painters labour over their materials, honing and refining them day after day, until they seem “natural” or “spontaneous”. The work of the artist is the work of the trial lawyer. Good advocacy is acquired when the lawyer has the persistence, the patience and the humility to practice and re-practice until the skill she exhibits at trial seems as if it were naturally imparted.
Nothing is more likely to demonstrate the artistry of a trial lawyer than a timely, strategic objection. By contrast, ill-conceived, or intemperate, or irrational objections are dramatic signs of a lawyer’s weakness, or worse: Competent trial lawyers learn over time that effective objections require, above all else, a keen knowledge and understanding of substantive as well as procedural law. The lawyer can never stop studying and reading and absorbing the law and its processes. In this context, I imagine the law as a large, ever-changing backdrop. The more I know of it, the more at ease I become working with
it, and the more likely I am to develop what others might perceive to be “an ear for error” or what the judge might consider a helpful or, even better, a valuable interjection, steering the court away from error.
My work as an advocate has bestowed many benefits. One significant perk is that I have represented some very interesting and colorful characters. These short commentaries are easily documented publicly in newspapers, magazines, books or the Internet. Their public nature makes them quite unlike the private information communicated to a lawyer for obtaining legal advice, and permits commentary on the public aspects of my interaction with these former clients. Each of these individuals enriched my life, by their love of life and by the unique way they approached their role in society. The nineteenth century poet and essayist Matthew Arnold once wrote: “Use your gifts faithfully, and they shall be enlarged; practice what you know and you shall attain to higher knowledge.” In the end, if we are to be true to ourselves and to this noble profession, we need only strive to fulfill this dictum. Continue reading “Thoughts of an Advocate”