Psychology plays a significant part for criminal defense lawyers in preparing for criminal trials and crafting defence strategies. The psychology of the accused, and how the alleged offending may be seen by a jury determining their case, are important factors which will inevitably affect the accused’s prospects of successfully defending a criminal charge (particularly a serious one).
Why Criminal Defence Lawyers Avoid Specific Allegation Details Early On
Generally speaking, unless we are preparing a client for a record of interview, an experienced criminal defence lawyer will not ask their client specifics about the allegations until the brief of evidence is served by police. There is an important reason for this! Criminal lawyers are bound by ethical rules, which govern how they can represent a client. A criminal lawyer cannot go into court and tell a lie. If a client has told them something, the lawyer cannot go into court and argue the case knowing that they are being dishonest and, thereby, misleading the Court. Albeit honestly, a client may have given their lawyer instructions in relation to the offending, without the benefit of understanding what evidence the police have. This can be to their detriment.
For example, where a client is charged with aggravated burglary, the client might assume that the police have forensic evidence linking him to the scene of the crime. He may admit to his lawyer that he was there. However, when the brief of evidence is served, the lawyer may find that there is no DNA or fingerprint evidence linking the client to the scene of the crime and that the evidence relied upon by police is identification by a neighbour, which is inherently unreliable. Having been told by the client that he was at the scene, the lawyer cannot go into court and argue that his client wasn’t there. Accordingly, the lawyer should then refer the client to a different lawyer, who does not know about the admission. Whilst that might seem simple enough, the client will be out of pocket financially and, also, is not being represented by the lawyer of their choosing, whom they trust.
Once the brief of evidence is served, however, a copy will be provided to the client and the lawyer will seek instructions on certain aspects of it. This is when the psychology of the client becomes significant. An experienced criminal lawyer will have to make an assessment of the client’s truthfulness and reliability. This may be quite straightforward. However, in many cases where individuals come into contact with the criminal justice system, they are affected by mental illness and potentially substance abuse. They may also be deliberately dishonest, because they feel the need to convince their lawyer of a proposition even if it is not supported by the evidence.
Crafting Defence Strategies for Vulnerable Clients
Lawyers are required to follow a client’s instructions, so long as they are competent. When a client may be affected by mental illness, overwhelming stress or substance abuse, their instructions may not be competent and cannot be followed. More psychologically vulnerable clients, such as young people, may be influenced by the opinions of a loved one or family member. In all of these situations, it is imperative that the lawyer speak with the client alone and make a decision as to whether to have them assessed by a forensic psychologist / psychiatrist or referred for drug and alcohol support. Once the lawyer knows whether the client is affected by any of the above, they can develop a strategy that takes into account the client’s mental illness or psychological makeup, which may involve only taking very limited instructions from the client, whilst defending them vigorously based on weaknesses in the police case.
Strategic Defence: Timing, Jury Dynamics, and Navigating Pre-Trial Challenges
Crafting a defence strategy for arguing a case to a jury is slightly more complex. First, a criminal solicitor will need to assess the weaknesses in the police evidence and when to raise these. An experienced criminal lawyer will be alert to the fact that, if you highlight a weakness in a police case too early, it gives the prosecution an opportunity to fix that weakness by gathering more evidence. Insofar as is possible, the defence should not show their hand until the last possible moment and only in front of a jury. However, this can be challenging because criminal procedure requires the defence to identify the issues in dispute in a case and respond to the prosecution case before the trial commences. An experienced criminal defence lawyer knows how to navigate pre-trial proceedings without adversely affecting the trial.
Once the defence case is ready, it has to be run before a jury. Unlike in other jurisdictions, lawyers are not allowed to question potential jurors. All we know is the occupation of a juror and we are only allowed a small number of challenges. In some cases, such as criminal proceedings involving sexual offending, a criminal defence lawyer may object to a juror being empanelled because they are in a profession which brings them into contact with sexual assault victims. They may come to the jury with knowledge that may affect their ability to fairly and impartially decide the case. Experienced criminal defence lawyers will also be astute to the demeanour of jurors and may object (without having to provide a reason) because, for example, a potential juror looked at the accused in a certain manner which indicated a pre-determined dislike.
It is a common feature in every criminal trial that a jury is likely going to commence the trial not liking the accused very much. In a western democracy like Australia, we are taught to trust law enforcement. The TV shows we watch and the books we read often glorify police and portray accused people as evil, dishonest and worthy of severe punishment. Accordingly, and unfortunately, criminal defence lawyers have to go into every trial realistically understanding that the jury are starting off believing the prosecution. It is the defence’s job to rebut not just the prosecution case, but also the jury’s pre-determined view that the accused is in the dock because he is guilty – not accused. Such strategies inevitably involve psychology. From the demeanour of Counsel, to what they say, how they engage and how they argue the evidence, all of these features play into the psychological strategy of a criminal defence. These strategies will not be the same for every case. It is nuanced and relies on the education and experience of the defence team.
How Our Criminal Defence Lawyers Can Help You
If you are preparing for trial and want to discuss your strategy, the best place to start is by contacting our office for an Initial Client Consultation. Very quickly, you will see that our team is different and can assist you to develop the very best case strategy to maximise your prospects of success.
