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.
I am asked today to provide some practical suggestions on how lawyers might prepare the defence from the first telephone call to trial. Too general a task? Probably, but I will do the best I can. Our aim will be a sort of variation on the Dale Carnegie theme: how to win clients and influence judges and prosecutors.
Meeting The Client: Be Interested, Stay Interested
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. Continue reading “The Forty-Five Minute Criminal Lawyer”
By Patrick Ducharme prepared for the L.S.U.C Continuing Legal Education program “Recent Issues and Developments In Criminal Law” September 6, 1997.
The common thread running through the topics presented here is that each in its own way deals with the problem of separating truth from falsehood or, better, the perception of truth from the perception of falsehood. And although the evidentiary issues relating to these topics are many and sometimes complicated, skillful counsel inevitably demonstrate mastery in understanding and applying them in individual circumstances.
An excerpt from the Canadian Legal Skills book, Jury Selection in Criminal Trials – Skills, Science, and the Law by David M. Tanovich, David M. Paciocco, and Steven Skurka.
When asked for his observations on the issue of whether to elect trial by judge alone or judge and jury, Windsor defence lawyer Patrick J. Ducharme, provided the following worthwhile advice:
It has often been said that counsel should elect trial by judge alone when in the individual circumstances of the case the law is favourable and trial by judge and jury when the facts are favourable.
In my view, this advice is overly simple and potentially hazardous to the client. Its most serious weakness is that it takes no account whatever of what is arguably the single most important factor of all, the personality of the lawyer who will advocate the case before the trier of fact.
This is a newspaper article written by Patrick Ducharme in the Detroit Free Press. Ducharme was allowed to write this article as part of a settlement for damages after he commenced an action against the Free Press and sports writer Keith Gave. The cash settlement paid by the Free Press to Ducharme was donated to Sick Children’s Hospital.
[This case is now used in journalism classes in Canada and the United States as an example of the difference between the rules of legal proof in libel and slander cases in the two countries. The action was brought in Ontario. The lawyers for the defendants attempted to have the case transferred to Michigan. The advantage to the defendants if the case was transferred to a U.S.
jurisdiction would be that the plaintiff would be required to prove malice. In Canadian jurisdictions, the onus of proof is upon the defendants to establish that what they have published is true once the plaintiff proves what was said and proves that it was libelous or slanderous.] Continue reading “Ducharme Disputes Free Press Allegations”