adminIn this instalment, I wish to dissect and answer the one question that many a lawyer is frequently called upon to respond to by relatives, friends and sometimes even strangers, particularly at gatherings such as weddings, parties, funerals and such like get-togethers.
By Tichawana Nyahuma
The question, which is very often put forward in an aggressive and animated fashion, is: “Why do you lawyers stand for and defend murderers, fraudsters, rapists and others of their ilk knowing full well that they would have committed the offence?”
Sometimes a lawyer comes across a person who is at that stage of choosing a career, swearing: “I am never going to study Law because I don’t want to become a liar.”
Well, to set the record straight, I categorically state that lawyers are not liars.
It is just by some inexplicable coincidence that the word “lawyer” somehow cynically rhymes with the word “liar” but neither word is a synonym of the other.
I stress that there is no other profession in our country and most of the so-called civilised world that values and advances the truth more or better than those in the legal fraternity.
I, therefore, contend that, but for the respect and value that lawyers accord to the truth, the legal profession would not have survived for all these centuries.
Innocent until proven otherwise
But to confront the question in issue, it is necessary to digress a little and say what is already in the public domain; which is that every person is presumed innocent until proven guilty.
This is common cause in our jurisdiction as well as in most of the world today. After all, upon arrest, the accused is only that — “the accused”.
The power to convict or acquit resides in a court of law.
Prior to the verdict of the court, a proper trial must first ensue. This is cast in stone both in our Constitution as well as in a raft of other international instruments to which our country is signatory.
In any event, the burden of proving guilt lies squarely on the State as represented by a prosecutor.
It is a settled principle of law that he who alleges must prove. It is not for the accused to prove his innocence, instead, it is the accuser who bears that onus, which onus is set at a very high level, commonly called proof beyond reasonable doubt.
If at the end of the trial, the accused person is acquitted, it does not mean that he is “clean”. Contrary to popular belief, an acquittal only means that the prosecution has failed to place ample evidence before the court to support a conviction leaving no choice except to acquit.
As already alluded to, this does not mean that the accused is innocent but that the presumption of innocence till proven guilty will continue to subsist.
After all, it has been said “lack of evidence is not evidence that there is no evidence”.
It is up to the police and prosecutor to ensure all available evidence and witnesses are brought to court if the conviction is to be sustainable.
Unlike in civil cases where the standard of proof is set at a lower level – proof on a balance of probabilities — in criminal cases, courts would rather err on the side of caution than convict an accused on scant evidence.
The standard of proof is, therefore, set at that higher level because the consequences of a wrong criminal conviction are dire and very often irreversible.
Adversarial and Inquisitorial
Readers may not be aware that there are basically two systems by which a trial is conducted. There is the “adversarial” and the “inquisitorial”.
The first is used in our country and there, the magistrate or judge’s role is primarily that of a referee between the prosecutor and the defence lawyer.
Under the second, the court plays a very active role in the trial, sometimes going so far as to even cross-examine witnesses. This is used particularly in the US.
What, therefore, is the role of the lawyer in all this?
It is to defend, guard and advance the rights and interests of his client while in the same breath, upholding and advancing the interests of justice.
There are certain rules, standards and procedures that the court is obliged to follow when conducting a trial. The said rules begin from when the accused person is first arrested.
For instance, police are now no longer permitted to hold an accused person for a period in excess of 48 hours before bringing that person to court. If they do so, that arrest becomes unlawful and the accused can be set free.
In fact, he is entitled to his immediate release.
Therefore, the duty of the lawyer is, as it were, to police the police and the court so that the rules before, during and after trial are observed and followed to the letter.
The police and the courts are obliged to abide by the rules whether or not the accused person has confessed to the charge.
It is also pertinent to pinpoint that every criminal offence has what are called essential elements. If a particular offence has three elements, then all of them ought to be present and proved “beyond reasonable doubt”.
If one of the essential elements is absent, there is no conviction and the court is enjoined to acquit the accused or find him guilty of a lesser offence.
This occurs frequently in murder trials where the aspect of intention or mental element is a vital component of the offence. Where the accused person killed another but contends that he lacked the mental element of “intent” when he caused the death in question, the trial court is obliged to acquit him of murder but may find him guilty of a lesser offence which may be culpable homicide (accidental death) depending on the circumstances of the case.
In all this, the lawyer’s role is to ensure that the accused’s defence is properly placed before the court so that the court is put in a position from where it is able to assess the evidence adduced by the prosecution in support of its case.
Although the defence lawyer has a duty to both his client and the court, that duty does not extend to assisting the prosecution’s case.
If the prosecution fails to collect and harness all the evidence to buttress its case, then tough luck. The defence lawyer in such a scenario, is at large to actually identify and highlight those discrepancies or holes in the prosecution case for the benefit of his client.
In most criminal trials, the prosecution case will largely depend on the oral evidence of witnesses. If the said witnesses give conflicting or contradicting evidence, the court will be constrained to rely on such evidence and the accused is likely to be acquitted.
It will be the duty of the defence lawyer to highlight those contradictions to the court for the benefit of his client.
I stress that the court’s decision will depend on what is given to it in court during the trial and not what the newspapers or public sentiment would have said.
Further, it has been said, colloquially is Shona that “haisi mhosva kuramba mhosva”.
If the accused confesses to his lawyer that he, in fact, committed the offence he is facing but upon perusal of the State papers and the evidence, it is clear to the defence lawyer that there is a gap in the State’s case, then the lawyer will be perfectly entitled to advise his client to deny the charge and actually go so far as to challenge the State to prove its case against him.
Failure to do so prove, the accused will be entitled to his acquittal and the presumption that he is innocent unless and until proven guilty will continue as aforesaid.
In some instances, the accused person will narrate his story to his lawyer and swear that he did not commit the offence charged.
A fool for a lawyer
However, even though this may be so, the defence lawyer, after considering all the circumstances of the case, is duty bound to advise his client to actually admit to the charge if, in his mind, he is convinced that there is no defence at all at law to the allegations.
This, in fact, happens very frequently in our courts and those lawyers who deal mainly in criminal cases are to be commended for that professional attitude. This does not, however, mean that where the accused admits to the charge, the defence lawyer no longer has a role to play in the case.
There is.
His duty thereafter will be to ventilate the circumstances under which the offence was committed vis-a-vis the personal circumstances of the accused so that that information is used to build mitigating factors which are essential for the court to come to a just sentence.
Besides, mitigation always sounds sweeter in the mouth of a third party (the defence lawyer) as opposed to the accused himself. Where the accused pleads or admits to the charge, it is nevertheless unwise for him to face the court on his own for it has been said that “he who has himself for a lawyer has a fool for a lawyer”.
This, therefore, is what lawyers do in criminal trials. In short, it is to assist the court to come to a just decision no matter how egregious the crime the accused is charged with. It is much like a medical doctor who is duty bound to attend to even the most abhorred in our midst. Lawyers and medical doctors are paid for their services regardless of the outcome thereof.
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