This article is written by Palash Bhatkoti, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.
Criminal defense advocacy is a lot about strategizing. Something that separates a winnable case from the others is the manner and types of defenses employed by an attorney. Of course it comes with a disclaimer that each lawyer has some defense techniques which are exclusive to him/her but apart from that, there are certain defense strategies which come handy in almost all situations.
Defense strategy is nothing but the choices that a lawyer makes on behalf of his client based on the facts and circumstances of the case. We are fortunate enough to be part of a country which has a rich legacy of remarkable criminal lawyers both in the past as well as present. Thus, not only does it make it incumbent upon us to carry that legacy forward but it also gives us an immense advantage to understand and imbibe some practices that can be used to effectively represent an accused/client before the court of law.
As the term ‘strategy’ is self suggestive, it refers to a conscious effort and planning on how the defense is to be constructed right from the stage of investigation till the conclusion of trial.
Defense techniques have undergone a paradigm shift from the era of general criminal laws to the times of specialized offences. In the pre 20th century, the role of defence lawyer was assumed important only at the stage of bail or during trial. The reason for this being, that the general criminal laws were accused centric and presumption of innocence was a cardinal principle, however with the opening up of economy and complex financial crimes coming into picture, the legislature drafted laws with the provision of reverse burden of proof. Meaning thereby, that the primary burden of proving an allegation has been shifted from the shoulders of the prosecution and instead the accused has to negatively discharge his burden by proving that he has not committed the alleged offence.
Thus, it becomes all the more important to engage in the process of criminal justice administration right from the stage of investigation to the stage of inquiry and ultimately the trial.
Table of Contents
Defence strategies at the stage of investigation
This is the threshold stage in the criminal justice system. A well carved out strategy right from the stage of investigation can yield considerable returns at the stage of trial and can even lead to closing the case against the accused.
This is a stage which sets the criminal law into motion. Investigating agencies begin investigation into an offence by registering preliminary information about the commission of the alleged offence in the form of First Information Report (FIR) generally recorded by the police or the CBI, Enforcement Case Information Report (ECIR) recorded by the Enforcement Directorate, Regular Complaint (RC), recorded by the CBI etc. Each of these instruments are recorded by separate agencies based on the nature of the offence committed.
Investigation is also the most crucial pre-trial stage, and it involves multiple sub-stages which can be dealt as follows:
- Know your brief and comfort the client
The first step to be followed is to get around the details of the FIR or ECIR as the case may be, and understand the true nature of the allegations. As a defense lawyer it should be analysed whether the facts stated in the FIR or the ECIR satisfy the ingredients of the offence alleged in the complaint or not.
At this stage, a detailed conversation with the accused is required as he is supposed to have the best first-hand knowledge of his case. If the client/accused is in custody, then repeated jail visits should be done, to extract maximum possible information.
Client interaction is very important not only for the purposes of building the case, but for a greater reason that, it gives him a sense of security. In a system which doesn’t create much difference between the accused and a convict, a stigma gets attached with the accused and the whole system looks down upon him. Therefore, at this time, only a lawyer is his best friend and the savior.
2. Application for monitoring investigation
If the case against the accused arises out of an FIR then an application under section 156(3) of the Criminal Procedure Code, 1973 (CrPC) can be moved before the concerned magistrate where he directs the police officer to carry out the investigation.
Before, 2008 the accused had no definite remedy to ensure that the investigation in the alleged offence would be conducted fairly. Thus, in cases of any irregularity in investigation or for the purpose of supervising the investigation the only remedy was to approach the High court by way of a petition under section 482 CrPC.
However, in the year 2008 the apex court in Sakiri Vasu v. State of U.P. (2008) 2 SCC (409) held that the magistrate has vide powers under section 156(3) CrPC, including the power to supervise investigation and now there is no need to approach the high court under section 482 CrPC
Thus, if there is an apprehension that police will botch the investigation, a request should be made to the concerned court to supervise the investigation and call for status reports at regular intervals.
3. Seeking pre-arrest bail
In situations where an FIR is registered but the accused is not arrested, a threat of arrest starts looming over the client’s head. Even otherwise, in an ongoing investigation, the investigating agency has wide powers of arrest at any stage of investigation.
An accused more often than not is summoned by the investigating officer (IO) to join the investigation and as soon as he responds to the notice he is taken into custody. Therefore to avoid such situations, it is better to apply for the pre-arrest bail or commonly called as anticipatory bail.
This method is effective in cases where the FIR or the ECIR has been registered by the IO and there are high chances of the accused getting arrested. Anticipatory bail can only be filed before the Sessions court or the High Court.
Further, there may be situations that, an anticipatory bail application is filed before the court but the application is not disposed of and remains pending for adjudication. In such a situation an interim bail can be obtained from the court till the time the anticipatory bail is finally disposed off.
4. Collecting and securing evidence
This stage can be best used for procuring and securing evidence. As long as the accused has not been arrested, the defense counsel should engage with him and work out possible ways and methods to obtain evidence.
It is very important to act smart and fast at this stage since the threat of arrest is always looming and hence if the accused is once lodged in custody, direct interaction with him becomes less frequent.
It is very important to obtain the key piece of exculpatory evidence before the IO gets its hand on it, because there are high chances that it may be buried or is not made a part of the record.
Also, some documents like Call Data Record (CDR) are crucial for proving the alibi of the accused but they are preserved only for a limited amount of time, therefore obtaining them at the earliest is of prime importance.
Sometimes, the Telecom companies refuse to provide call details to the accused and usually the IO is not very inclined to put in efforts in collecting evidence much less for the accused. Therefore at this stage, the accused can seek interference of the court by moving an application under section 91 CrPC requesting the court to direct the concerned telecom operator to provide the call details.
Thus, the most important duty of the defense counsel at this stage is to compile all the exculpatory evidence in the favour of the accused and create a combined document which should be properly paginated and indexed.
This document should be submitted to the IO during the course of investigation/interrogation and an acknowledgment should be taken as a proof of submission. All efforts should be made to apprise the IO about all the exculpatory evidence at the threshold stage itself.
Whereas, withholding documents at the investigation stage can prove counterproductive. Rather, if the exculpatory documents are supplied to the IO at such an early stage, it can even lead to the closure of the case. Even otherwise if the case is not closed and the chargesheet is filed, it would be easier to argue discharge since all the supporting documents have already been submitted and brought on record.
5. Securing bail
Unlike the pre-arrest stage, this is a stage where the accused has already been arrested and he is undergoing police custody or judicial custody. In non-bailable offences, bail is not a matter of right and depends upon the discretion of the judge. Therefore, for non-bailable cases, until the bail is actually granted, the chances of securing bail is significantly bleak.
In India, the stage of bail is also often treated as a stage to inflict punishment upon the accused. Further, we have some stringent conditions in certain laws like Companies Act 2013, NDPS act 1985, UAPA 1967, etc which demand that bail should not be granted unless the accused is able to satisfy that he is not guilty of the offence.
Deciding culpability at the stage of bail is technically putting the cart before the horse as the accused has to lead evidence even before the prosecution has established its charge.
Thus, as a defense lawyer we are often faced with certain objections by the prosecution during the bail hearings. Here are some of the objections and the possible responses to tackle them:
- Offence alleged is grave in nature
The prosecution generally argues that the charges sought to be leveled against the accused are serious and grave in nature and hence bail should be denied.
Whereas, this is no ground to deny bail as was held in P. Chidambaram V. Directorate of Enforcement (2019) 9 SCC 63. The honorable Supreme Court in the aforesaid judgment held that the accused cannot be denied bail just because the nature of the offences alleged against him are grave. If the court is satisfied that the accused will not tamper will the evidence, meddle with the witnesses, commit any other offence while on bail, etc, then there is no reason as to why the bail should not be granted to the accused.
Gravity of offence may be one of the considerations to deny bail but it cannot act as a sole condition to deny bail.
- Granting bail to the accused will send a wrong message to the society
The courts are not meant to act as a mouthpiece of the prosecution nor are they supposed to send messages to the society.
The court has to only satisfy itself of the standard conditions like, the accused will not tamper with evidence, the accused is not a flight risk, he will cooperate in the investigation, etc.
The judgment of the Delhi High Court in FerozKhan V. NCT Delhi, 29th May, 2020 re-affirms that it is not the court’s duty to send out messages to the society and if the accused will be able to satisfy the conditions of bail, there is no reason to deny him bail.
- Accused has other cases pending against him as well
This of course is a big consideration before the grant of bail. Multiple pending cases against the accused reflect the character of the accused, however as per the judgment of the Supreme Court in Prabhakar Tiwari V. State of U.P. 2020 1 RCR (Criminal) 831,while considering the bail application, the court can consider this point in deciding the bail application, however it cannot be the sole condition to deny bail in a particular case.
The mind of the judge should not be prejudiced and each case should be decided on its own merits objectively. Presumption of innocence until proven guilty is the fundamental tenet of criminal law and mere accusation cannot be treated at par with conviction.
- The sealed envelope practise
Of late, a new trend has emerged where the prosecution shares case sensitive documents only with the court and not with the accused citing its confidentiality thus depriving the accused of his right to fair disclosure.
The Supreme Court has deprecated the practice of providing documents in sealed envelopes in the case of P. Chidambaram V. Directorate of Enforcement (2019) 9 SCC 63. . Recently, Justice Gautam Patel of the Honorable Bombay High Court came down heavily on a party who was trying to sneak in some documents though sealed envelopes only to the court.
Thus, if the accused has been deprived of any important document, that can be useful for securing his bail, it can be argued that the same should be shared with him as well.
- Reverse burden of proof
Almost every special statute has a separate clause of reverse burden of proof whereby the accused is required to discharge the primary burden that he is not guilty of the alleged offence.
This practice is unheard of in the traditional criminal jurisprudence, but be that as it may, the stage of discharging burden would not come at the stage of bail. If at all the primary burden is to be discharged by the accused at the bail hearing, it would amount to a mini trial before the actual trial commences.
The Delhi High Court has affirmed this view in Upendra Rai V. Directorate of Enforcement, 9th July 2019and recently in Dharmendra Singh V. GNCTD, 22nd September 2020holding that, even if primary burden is to be discharged by the accused, the same will have to be done at the stage of trial and bail cannot be denied on the grounds of inability to discharge the burden at pre trial stage.
- Accused not cooperating in investigation
The prosecution pleads non cooperation with the accused for opposing bails in almost routine manner. Cooperation doesn’t mean that the accused shall have to hand over all incriminating evidence on a silver platter to the IO. But this is what the prosecution expects from the accused.
Another reason for the prosecution to argue on non-cooperation is to buy more time from the court to file chargesheet till the time the accused is in custody.
However, cooperation doesn’t amount to making confessions by the accused. The judgment of Santosh V. State of Maharashtra, (2017)3 UC 2126 reiterates that accused cannot be made to act on the fancies of the prosecution and denied bail on this ground alone.
- Default bail
The concerned investigating agency is expected to conclude its investigation in a definite time period failing which the accused right to be released on bail arises. This is known as default bail in common parlance.
The provisions of default bail are governed by section 167 (2) CrPC. A time limit of 90 days and 60 days is given for concluding investigation for respective offences, based on the term of imprisonment associated with each offence.
A defense lawyer should be very vigilant in order to secure default bail for his client. He has to play a proactive role in arranging sureties, and getting the bail bonds ready, since the client would be in custody.
Default bail is an indefeasible right of the accused and the same can be obtained even without filing a bail application if the Investigating agency doesn’t conclude the investigation on the expiry of 60 or 90 days as the case may be Rakesh Paul V. State of Assam, (2017) 15 SCC 67 is the landmark judgement on this point, which holds that, on the failure to file chargesheet on the 60th or the 90th day, the accused can seek bail even without filing a bail application.
6. Summoning of the accused by the investigating officer
This is a very sensitive stage which requires a lot of due diligence by both the defense counsel and the client. At this stage the client is called upon by the IO for the purposes of interrogation which can also lead to the client ending up in police custody.
As a defense lawyer, we have to focus on two main things at this stage:
a) Preventing arrest of the client by filing anticipatory bail
b) Preparing the client for interrogation
Applying for anticipatory bail actually depends upon a lot of circumstances like the role of the accused in the alleged offence, sensitivity of the case, media pressure, etc. Thus as a defense counsel we will have to assess the chances of the client getting arrested. It is very important to keep in mind that, if the anticipatory bail is rejected, the IO will have the power to arrest the accused immediately upon its rejection and hence it is a slippery slope.
Secondly, if the accused is appearing before the officer for interrogation, make sure he is well prepared to tackle the questions smartly. The accused has to be given a real time experience before he goes in for interrogation.
In general IPC offences, the statements recorded by the IO would have no evidentiary value hence it is not a great matter of concern, however under the special laws like the Prevention of Money Laundering Act, 2002(PMLA), the statements recorded before the IO are in the nature of a confession which are admissible in evidence and therefore, the client/accused should be made aware of the possible situations which can occur during interrogation.
- Quashing the case at the threshold
This is one of the most routinely used methods in the criminal defense, whereby the accused approaches a High Court for quashing the case/FIR/ECIR when the investigation is pending at a very nascent or has not even commenced.
If the facts disclosed in the complaint/FIR do not disclose the commission of any alleged offence, or when there is a patent irregularity visible on the face of the FIR/ECIR, the high court’s jurisdiction can be invoked by way of a writ petition under article 226 for quashing the case at the stage of investigation itself.
However, it is not a cakewalk and even the High Courts do not indulge entertaining such petitions unless it is firmly satisfied that no case at all is made out after perusing the FIR.
This remedy should be very cautiously invoked by the defense counsels because the High Court usually directs the petitioner in such cases to argue his points at the discharge stage before the trial court. Moreover, if a negative finding is recorded by the High Court while dismissing the petition, it will keep haunting the petitioner till the conclusion of trial as even the prosecution will heavily rely on the High Court’s finding which can potentially influence the trial court’s decision in the favour of the prosecution.
State of Haryana V. Bhajan Lal, 1992 AIR 604 is the landmark judgement on the point of quashing the case. The Supreme Court laid down guidelines to be followed in deciding a petition under article 226 of the Indian constitution or section 482 CrPC for the quashing of an FIR/Case.
Now, once the investigation is concluded, there are two possibilities:
a) Filing of closure report when evidence is not sufficient to prosecute the accused
b) Filing of chargesheet when evidence is sufficient against the accused to carry out prosecution
Once, the chargesheet is filed, the court starts applying its judicial mind and that’s when the stage of inquiry begins. The first step upon filing of the chargesheet/complaint is for the court to take the cognizance of the offence.
Thus, after the cognizance is taken by the court certain defense techniques can be adopted based on the nature of proceedings at respective stages following the stage of cognizance.
Defence strategies at the stage of inquiry
Section 2(g) of the Criminal procedure Code, 1973 defines inquiry as all proceedings conducted by a magistrate other than the trial. So basically it is the stage that comes post investigation but before the trial.
Thus all proceedings subsequent to filing of chargesheet/complaint and before the stage of charge are covered under this stage. Here are certain defense techniques which could be employed at different stages based on the nature of proceedings:
- Summoning of the accused by the court
After the cognizance is taken, the court proceeds to issue summons to the accused to appear before itself. The summoning order can be challenged either by way of a revision petition or under section 482 of the CrPC.
It’s one of those defense techniques which have no uniform application and its success and failure is based upon the facts and circumstances of each case. If the client has been falsely arraigned as an accused or there is no evidence to corroborate the charges leveled in the chargesheet, the summoning order should be challenged before the appellate court or the High court.
- Supplying of documents
Once the cognizance has been taken, the accused is summoned for the first time by the court under section 204 CrPC and a copy of the charge sheet along with all the relied upon documents is supplied to the accused under section 207 or 208 CrPC.
In the cases of financial offences the chargesheet/complaint is very bulky because of the documents such as money trails, financial statements, bank statements, ledger, etc are all part of the record. In such cases it is advisable to request the IO to supply the copy of the chargesheet and the documents in the electronic form as it becomes a lot easier to sift through the documents in E-format.
Additionally, as a defense counsel, very careful analysis of the seizure memo/panchanama should be done in order to see whether the seized documents have been made part of the record or not. The IO usually withholds the exculpatory material and doesn’t make it a part of the record. That’s where the objection should be raised and a request has to be made to the court for directing the IO to bring all the exculpatory evidence on record as well.
The right to full and fair disclosure is the part of the accused’s right of fair trial. The Apex Court in V.K. Sasikala V. State, 2012 observed that it is an incumbent duty upon the IO to bring all the documents on record irrespective of the fact that it supports the case of the accused. The IO cannot indulge in the act of cherry picking the best evidence for prosecution and leaving out the rest.
3. Securing permanent exemption for non appearance
The process of trial is itself a punishment for the litigating parties, and nobody in its right mind would enjoy visiting courts leaving behind their work, business, family, etc. Thus, especially as a defense counsel, it should be seen that the client’s suffering is reduced to the minimum extent possible.
For this, an application should be moved before the concerned court to grant exemption from personal appearance to the accused on regular dates except on days when his appearance is indispensable. The courts are usually liberal in granting permanent exemption, except in the cases where such relaxation is not warranted.
- Quashing of the chargesheet/complaint
This is another commonly employed defense technique where the High court’s jurisdiction under section 482 CrPC is invoked to quash the case against the accused.
As explained above, Bhajan lal’s judgement is the locus classicus in this regard. If upon perusing the chargesheet/complaint, it is found that no case is made out against the accused, or where the ingredients of the offence alleged are not disclosed from the perusal of the chargesheet/complaint or there is a patent irregularity visible on the face of the chargesheet/complaint,High court’s jurisdiction can be invoked to quash the case at the threshold stage itself.
However, it’s a double edged sword and any finding by the High court which goes against the accused can hurt his case in the trial. Thus, it is one territory which should be carefully treated. Quashing should not be preferred in a cavalier manner, and a decision on invoking high court’s jurisdiction should be done after due application of mind and weighing all the pros and cons.
- Requirement of prior sanction
Obtaining prior approval of the appropriate government (centre or state, as the case may be) before initiating prosecution is a prime feature in most of the special legislations and especially in the cases of bureaucrats, ministers and public servants.
For Eg: While dealing with the cases under the Prevention of Corruption Act, 1988 it is mandatory to obtain prior sanction of the appropriate government before prosecuting a public servant.
Thus while defending a public servant, apart from the other necessary things, we should look whether the requisite sanction has been obtained or not. Further, the sanction/approval note should be carefully scrutinized to see if the superior officer while granting the sanction has actually applied its mind or just acted as a mere stamping authority.
The whole objective of creating the mechanism of obtaining prior sanction of a superior officer is for the purpose of avoiding frivolous and vindictive litigation. If the nature of the sanction is such that, there appears to be no application of mind then it should be immediately challenged by way of a writ petition before the High court.
- Plea of limitation
Like the civil disputes, certain classes of offences are also bound by the principles of limitation. The Criminal Procedure Code, 1973 lays down time limits for the courts to take cognizance of certain offences within a specific time period (refer Section 468 CrPC).
Therefore, if the stipulated time has elapsed and the court has not taken the cognizance of the offence yet, the concerned court should be apprised about the situation immediately and the cognizance should be challenged at the threshold stage itself for being time barred.
After, the cognizance has been taken by the court and the further procedure has been complied with, the court proceeds towards the stage of framing of charge and with this, the trial officially commences.
Defence strategies at the stage of trial
A criminal trial commences from the stage of framing of charge. At this stage the prosecution argues to justify the offences alleged in the chargesheet/complaint while the accused argues that no offence is made out since the ingredients of the offences alleged are not present and hence he should be discharged. At this stage, if the accused pleads guilty, then he is straight away convicted by the court, however, if the accused pleads innocence, then the court proceeds to frame charge against him and the stage of prosecution evidence follows next.
The stage of evidence, i.e. the examination of witnesses is the most important stage of any trial. The ultimate goal of any trial is to find out the truth of the matter, however, the trial is not as much about seeking the truth and rather more about whose story is more convincing.
Thus, in order to convince the court, the witnesses are examined by both the prosecution and the defense to prove their case. Also, trial is the first and the last opportunity with the accused to prove his innocence comprehensively and hence the following defense techniques at each stage can be used to increase the chances of acquittal or even discharge.
- Stage of charge
For the longest time, the settled position at the stage of charge was that the court had to take on only a prima facie view on the evidence presented before it. The court was not supposed to traverse beyond the evidence and documents submitted by the prosecution along with the chargesheet/complaint.
However, this sounded very obsolete and biased as the accused did not get a fair opportunity to get discharged at the threshold stage because he wasn’t allowed to bring in evidence at the stage of charge and thus he had to prove his innocence from the limited material brought forth by the prosecution.
Whereas, the Supreme Court in Nitya Dharmanada V. Gopal Sheelum Reddy, 2017 case held that the old view was unjust and unfair for the accused since he was not allowed to have a level playing field. Therefore, the court held that, even the accused can bring in evidence at the stage of charge. It was further held that if the evidence presented by the accused is of sterling quality, then the courts should indulge in discharging the accused, without having to wait for the full blown trial.
This is where the techniques employed right at the stage of investigation yield results. If the accused is well equipped with necessary exculpatory evidence beforehand, the same can be used to argue discharge even if the IO doesn’t make it a part of the record. Thus, sincere efforts should be made by a defense counsel in compiling all the right evidence and using them at appropriate stages.
The stage of Examination-in-chief begins with the prosecution deposing its witnesses to record their testimony as prosecution evidence. The procedure of recording evidence is governed by the Indian evidence act, 1872. Examination-in-chief should not be taken casually by defense counsel and a very vigilant approach should be adopted to see whether the prosecutor is following the rules of the game and to assess the demeanor of the witness being examined.
The examination-in-chief cannot be conducted in question and answer form and has to be in front of a narrative. Except for a few introductory questions and in the event of a witness turning hostile, the examination in chief has to be recorded in the form of narrative only. The prosecutor cannot lead his own witness unless it turns hostile.
Thus as a defense lawyer all objections should be taken if the prosecutor’s line of questioning is faulty or if he has led his own witness.
Also, the defense counsel should have the instinct to assess the demeanor and character of the witness while he is deposing for the prosecution, since the same witness has to be cross examined by the defense counsel and hence observing the demeanor of the witness helps in framing the correct line of questions.
A strict objection should be taken on hearsay testimony by the prosecution witness. Also, if any witness exhibits any electronic record without a certificate under section 65B of the IEA,1872, the same should be objected by the defense counsel for ignoring any such exhibit/evidence without due authentication under the law.
For this purpose, a reference can be made to the judgment of the Apex Court in Arjun Panditraokhotkar V. kaialshkhushnraoGorantyal, 15th July, 2020 which has clarified the law on mandatory requirement of an authentication certificate in the case of electronic records/evidences purported to be given as evidences.
It is very important to know that the failure of the defense counsel to object on any irregularity committed during examination in chief would be taken as right waived. Thus, the defense counsel should practically be on his toes to call out any procedural infirmities committed during the examination in chief.
It would not be an overstatement to say that the stage of cross-examination is the heart and soul of a criminal trial. It’s a make or break situation for any defense counsel. The stage of cross also tests the quality of the defense lawyer as the success of any cross-examination depends upon the mastery of both the facts and the law.
A lawyer should virtually be living through the case if he aims on conducting an impactful cross-examination. A defense counsel should not only be thorough with the facts of the case, but also with the previous statements of the witnesses recorded by the IO.
The cross-examination of the witness is done on the basis of his statements recorded by the IO and by the court during examination in chief. That is why it is strongly advised to pay attention during the examination in chief.
The cross-examination is conducted in the form of questions and answers where the witness is required to answer only in a yes or no. The questions to these answers are called leading questions, as they are asked for the purpose of leading the witness into giving the specifics of any details answered by him in the narrative during the examination in chief.
Thus, the line of questioning is very important during cross-examination. Cross-examination is an art and hence there is no uniform method of asking questions. Each case differs from the other, and hence the strategy should be molded accordingly.
As explained above, it is very important for a defense counsel to be intuitive during the examination in chief to correctly assess the character of the prosecution witness. All great lawyers have one thing in common and that is their ability to trust their instincts.
Some witnesses are smart and well tutored. These types of witnesses should not be unnecessarily meddled with to satisfy your lawyer ego. The best way to rattle these witnesses is to ask them questions which they do not expect. Such witnesses should not be given time to think or explain their statements. Quick and pointed questions should be asked in order to contradict their own statements. Any improvements, contradictions and omissions by such witnesses should be pointed out during final arguments.
Always avoid asking general questions and never allow a witness to have freedom to be ultra expressive. We should understand that, cross-examination is nothing but clever questioning. The moment a defense counsel is able to extract from the witness, whatever is required, he should be let go. Do not get carried away and go on asking irrelevant questions. In cross-examination, it is more important to know what not to be asked than vice-versa and thus it is always important to know when and where to stop.
Cross-examination is not limited inside the courtroom. As a defense counsel, try to extract maximum possible information on each witness and try to learn about his background. Certain witnesses are stock witnesses of the prosecution as they depose in every case invariably. Then there is another class of witnesses who are temporarily forgetful. Such witnesses tend to forget every important information at their convenience however they recall all those facts which support the case of prosecution. All these infirmities should be pointed out to the court to impeach the credibility of such witnesses.
But be careful that the background check of the witness doesn’t become forceful and intrusive; otherwise witness tampering can be alleged upon the defense. Every strategy is to be chalked out within the contours of law.
Further, it is important to determine the order of examination of the witnesses. This becomes very important in case of eye witnesses. Sometimes there are more eye witnesses than one. In that case all possible efforts should be made to examine all of them on the same day. A defense counsel should be ready to examine all of them one after the other. Any deferment should be vehemently opposed. If such witnesses are examined partly one day and the remaining on the other, there are high chances that the later witnesses will come up with doctored testimonies to match the story of other related eye witness(s).
An advocate has a right to determine the order of examination of witnesses and the court doesn’t usually object to it. Therefore this right should be availed and put it to its best use.
The judgement of the Delhi High court in Vijay kumar V. NCT Delhi 3rd July, 2017 takes the same view.
In a criminal trial the job of the prosecution is much tougher as compared to the defense. The prosecution has to build an entire fort which should be airtight while the defense can puncture the case by taking out even a single brick from the wall. Thus, cross examination is the tool in the hands of the defense to puncture the wall and create a situation of reasonable doubt. If employed effectively, securing an acquittal would become a foregone conclusion.
- Final arguments
As the name suggests, this is the final stage of a criminal trial. The strength of the final arguments is based on how effectively a lawyer has employed all the above mentioned defense techniques in respective stages. There should be uniformity in the defense by harmonizing the techniques employed in all the three stages.
Contradiction in the testimonies of the prosecution witnesses should be pointed out and repeatedly emphasized upon to break prosecution’s case. The stage of section 313CrPC (when the accused is called upon to respond to the prosecution’s allegations) should be used to specifically answer the allegations. No general or vague statements should be made.
It should always be borne in mind that a lawyer is first, an officer of the court and hence a rapport should be built with the court, by the time the stage of final arguments arrive. Winning the trust of the judge is very important for a lawyer to gain a psychological advantage. As told earlier, the prosecution has to prove its case beyond a reasonable doubt, but the accused has to win the trust of the society. A Judge himself is a part of society and no matter how much judicial training he has undergone, a sociological impact on his psyche is inevitable.
Therefore, if there are any unpleasant facts against the accused, the same should be conceded. Defending doesn’t mean arguing mindlessly. As a lawyer, it is more important to know what not to speak and when not speak. Any judge would appreciate a lawyer who has the courage to concede certain bad facts. This also leaves an impression of truthfulness of the defense and as explained above, the trial is all about convincing the court on whose story is more convincing.
Navigating a criminal trial is one of the most fulfilling experiences in the practice of law. The pleasure of securing an acquittal or a discharge is intellectually very satisfying. The lawyers practicing on the criminal side are the torch bearers of the constitutional principles of rule of law and right to a dignified life.
Criminal advocacy is one area where the margin of error is negligible as the lives of people and their fate is in the hands of the lawyer representing them. Thus, in order to ensure that an advocate is able to execute what is expected of him, a deep understanding of procedure and practice is required. There is no place for mistakes and immaturity in this field of law.
Apart from the defense strategies, discussed hereinabove, there are a host of factors like the professional mannerism, the reputation with the court, art of persuasion, oratory skills ,etc to name a few, that play a significant role in achieving desired results.
These traits aren’t acquired overnight. A lawyer acquires them through years of hard work, experience and most importantly from the senior to whom he is associated for the better part of his life. Therefore, it is very important for a young lawyer to be associated with good learned seniors in order to acquire these traits and continue to fight for sustaining the principles of constitution.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.
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