Fighting your corner part 3
Last week we considered a hypothetical example of a hopeless defence and why they barrister must battle on. This week we shall commence considering an actual one (identity and details suitably changed or obscured).
Defence counsel had a very hard job in front of him. He was defending various counts of rape and indecent assault. Crimes committed on three girls of various ages all under age 16. The witness statements of the girls were graphic. What they were describing had to have occurred. It was difficult to see how it could have been made up. There was too much realistic detail.
The defendant was a married man in his early 30s, two young children himself. He worked as a site foreman at a factory. No history of sex offences, in fact he had never been convicted of (or arrested, charged or tried for) any offence at all. He was absolutely adamant that he had never assaulted or raped any of the girls. (There had been a delay between the alleged offences and them being reported, so there was no question of forensic evidence whether he was guilty or not). Nor could there be any question of him pleading guilty regardless of the consequences, because he made it quite clear that he had done nothing wrong. As far as he was concerned he did not know the girls. He could think of no reason why they should make up an allegation against him.
The barrister was very worried about the case. The defendant seemed convincing, but he didn't know whether that would come across giving evidence. The case seemed strong. The defendant was looking at going to prison for a very long time. Sex cases of this sort (or any case involving children) are different to other crimes. You could be convicted of murder and eventually rehabilitated after your release. No one is ever accepted after offences of this sort. Not ever.
There were three principal difficulties with the cross examination of each witness. The first was that the details of the story were realistic. They had to be challenged, but the more you challenge detail like that the more you can end up making a case sound even stronger than before. Secondly there was absolutely no reason why any of these witnesses should lie. If the assault had occurred you could see why the defendant would lie. To save his skin. Very difficult to see why the prosecution witnesses should have made an allegation at all, still less made an allegation against him. Thirdly these were underage girls. Naturally the jury would be sympathetic. If you failed to handle witnesses like that carefully then you are making a bad situation much much worse.
Counsel cross examined the first witness. The eldest. He got absolutely nowhere. Her evidence was unshaken and it was obvious that the jury were going to accept her story. Things were looking grim for the defence case.
I will tell you what happened next week. Before you find out, ask yourself this question. On the evidence, does it look as though the defendant did it? Do you agree that it is absolutely vital that defence counsel battles on to the last whether it looks as though the client committed the crime or not, with it being for the jury to decide guilt or innocence?