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.
How does one build the trust that is required between client and attorney?
Surprisingly, most individuals, unique as they are, have very similar needs, especially when they come to lawyers for help. They need to feel, for example, that their lawyer is eager to take their case. They need to believe that their lawyer is prepared to defend the case fearlessly. You will satisfy this need not only by knowing the client but by “seeing” the case, at least initially, from the client’s perspective, not yours.
Knowing the client, building the trust, involves small steps, none costly. Treat the client like a treasured member of your family. Greet him personally when he arrives at the office rather than dispatching a staff member to fetch him from the waiting room. If someone told you that your mother or father had just arrived in your waiting room, would you send a staff member to get them and bring them to you? Once in your office, remember that the desk itself is a barrier. Remove all barriers metaphorically, if not literally. Ask the question, and mean it: How can I help you?
In this way, the first meeting is always friendly, non-threatening. Some lawyers, not wanting to waste time (“Time is money”), use the first meeting to immediately challenge the client’s story, looking for weaknesses in it, trying to determine what the defence strategy might ultimately be. Patience, I say. There will be plenty of time for critical inquisition later. The first meeting requires more understanding, more listening, more learning.
I am not suggesting here that there can be no discussion whatsoever of fees during the first meeting. But if they are discussed at all, the discussion should occur at or near the end of the meeting. And it should be premised on the client’s need to know the business arrangements, because obviously a major concern of every client is the cost of the service provided. The client wants, needs and deserves to have this information. And that should be the spirit in which it is given. Never, ever, should the premise be that the lawyer does not trust the client and therefore needs certain commitments from the client “up front” or the lawyer will show him the door.
A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stands accused of a crime and faces the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged.
The reason is that while clients come and go the lawyer’s daily experience remains relatively the same. And the more experience the lawyer acquires the less intimidating, the more routine, is the entire trial process. It is not arrogance or indifference which sets in, but the appearance of them. Hence, my first suggestion: be interested, stay interested. No matter how familiar the accused or the offences charged, try to know the client. Really. Know who that person is.
Someone once said that every human being has a thousand faces. Every human being is special and unique. What’s special about your client? Only when you know this should you concern yourself in detail with the manner and timing of the payment of fees. Build trust with the client. When you do, how and when you will be paid will be a natural part of the relationship.
This was an except from my latest book.
* In the next excerpt, I will answer the question “How does one build the trust”?
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.