Patrick J. Ducharme. June 2007 Law Society of Upper Canada 7th Annual Six-Minute Criminal Defence Lawyer CLE Toronto, Canada
Weighest thy words before thou givest them breath
Othello, Act III, sc 2
I am asked today to discuss with you strategies to be used by counsel in dealing with the media when involved in a high profile case. This is a topic I approach with trepidation, aware that anything I have happened to learn over 30 years of trial work has been accomplished mostly by trial and error. The errors, it goes without saying, have been many and sometimes embarrassing. I do not hold myself out as an authority on the subject, but as I embark upon it I am comforted somewhat by these words of Eric Hoffer: “It is to escape the responsibility for failure that the weak so eagerly throw themselves into grandiose undertakings”.
Any discussion of strategy concerning the media must be informed and shaped by counsel’s ethical duties to the court. The Law Society’s Rules of Professional Conduct are an essential starting point. They are designed to reduce public complaints about the profession, and to ensure that counsel’s comments to the media do not infringe counsel’s obligations to the client, the profession, the courts, or the administration of justice.
By Patrick J. Ducharme. Prepared for The Law Society of Upper Canada, 5 th Annual Six-Minute Criminal Defence Lawyer Series, June 4, 2005, Toronto, Ontario.
He that hath deserved hanging may be glad to escape with a whipping.
In Canada, co-operation by the accused with police and prosecutors has long been considered a mitigating factor in sentencing. 2 However, failure to co-operate with the authorities should not serve as an aggravating factor. 3 Co-operation is usually defined as the willingness of the accused to assist the authorities in the investigation or prosecution of others. The co-operation may take an infinite variety of forms, including, for example, participating in a “sting” operation or a controlled delivery of drugs or testifying for the
prosecution in court, or providing information anonymously to the police concerning the criminal activity of others. Continue reading “Co-Operation as Mitigating Factor on Sentence”
Cross-examination is a treacherous process, loaded with danger, as so many others have already eloquently stated. 2 Indeed, we hear, read and see so much about what decisive effect cross-examination can have in a borderline case that perhaps we create, quite unintentionally, a most undesirable effect: the paralyzing fear of failure. I hope you will humour me a while today; I want to try to alleviate the fear.
To that end, I begin with this shaping thesis: cross-examination can be effective, even easy, if only the examiner will follow a few simple rules. In advancing this view I wish to make clear that I am not referring to what is sometimes called “friendly” cross-examination, the situation in which the examiner questions an adverse party whose testimony is compatible with or
sympathetic to the side represented by the cross-examiner. My thesis is meant to apply in the case of witnesses who are “unfriendly,” or opposed to the position advocated by the cross-examiner. I have in mind, in other words, cross-examination which aims to undermine, discredit or impeach the recipient.