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Friday 12 December 2008
Evidence may be revealed to defence before trial
If the proposed changes to the Criminal Procedure Code are passed, lawyers may have gone some way in getting what they had been clamouring for, for years - a level playing field with the prosecution.
If the proposed changes to the Criminal Procedure Code are passed, lawyers may have gone some way in getting what they had been clamouring for, for years - a level playing field with the prosecution.
The review committee suggested that the legislation governing the discovery process should make the prosecution reveal to the defence the evidence they intend to use before a trial begins.
Non-compliance with these new rules could be grounds for letting the accused walk free. The court can grant the accused a discharge not amounting to an acquittal - which means the case can still be re-opened later if there is a new development in the matter.
Discovery in legal cases refers to the process where all sides involved seek information or evidence from each other.
If the proposed changes to the law are passed, the prosecution will have to reveal to the defence the following items: the charge against the accused; a summary of the facts supporting the charge; a list of prosecution witnesses; a list of case exhibits; and any statement made by the accused which the prosecution intends to use during the trial.
At present, defence lawyers do not get to see what evidence the authorities have against their client, not even the statements he made to the police. All these surface only when the trial starts.
This aspect of criminal trials has long been a grouse of defence lawyers here, many of whom claim they do not get enough time to prepare their arguments because the prosecution suddenly springs evidence on them that they were not aware of and they feel ‘ambushed’.
To make things fair for all, the new law, if approved, will also make it compulsory for the defence to reveal to the prosecution their case and witnesses as well.
The changes will apply to cases heard in the District Courts and High Courts. The practice will not be followed for Magistrate Court cases which are generally less serious offences such as littering and creating a public nuisance.
Lawyers say the proposed changes have left some grey areas. For example, the proposed changes state that the prosecution only need submit evidence which they will use at trial. What happens then, lawyers ask, if the police have a statement from a witness which exonerates the accused, but the prosecution do not have to hand it over to the defence as they will not be using it in the trial.
Former Law Society president Peter Low said: ‘What about statements taken from the accused or evidence collected by investigators which are not used in court? They could be of use to the defence but because the prosecution is not using them, the defence has no access.’
Another issue which criminal lawyers have long argued for is that a person who is arrested for a crime should get earlier access to counsel. Although this is believed to be one of the areas the review committee was looking at, it was not in the list of proposed changes.
But lawyer Amolat Singh said early access can be a ‘double-edged sword’ as the prosecution may argue that because an accused has seen a lawyer, he was aware of all his rights when he made the statements without the latter’s presence.
1 comment:
Evidence may be revealed to defence before trial
K. C. Vijayan
12 December 2008
If the proposed changes to the Criminal Procedure Code are passed, lawyers may have gone some way in getting what they had been clamouring for, for years - a level playing field with the prosecution.
The review committee suggested that the legislation governing the discovery process should make the prosecution reveal to the defence the evidence they intend to use before a trial begins.
Non-compliance with these new rules could be grounds for letting the accused walk free. The court can grant the accused a discharge not amounting to an acquittal - which means the case can still be re-opened later if there is a new development in the matter.
Discovery in legal cases refers to the process where all sides involved seek information or evidence from each other.
If the proposed changes to the law are passed, the prosecution will have to reveal to the defence the following items: the charge against the accused; a summary of the facts supporting the charge; a list of prosecution witnesses; a list of case exhibits; and any statement made by the accused which the prosecution intends to use during the trial.
At present, defence lawyers do not get to see what evidence the authorities have against their client, not even the statements he made to the police. All these surface only when the trial starts.
This aspect of criminal trials has long been a grouse of defence lawyers here, many of whom claim they do not get enough time to prepare their arguments because the prosecution suddenly springs evidence on them that they were not aware of and they feel ‘ambushed’.
To make things fair for all, the new law, if approved, will also make it compulsory for the defence to reveal to the prosecution their case and witnesses as well.
The changes will apply to cases heard in the District Courts and High Courts. The practice will not be followed for Magistrate Court cases which are generally less serious offences such as littering and creating a public nuisance.
Lawyers say the proposed changes have left some grey areas. For example, the proposed changes state that the prosecution only need submit evidence which they will use at trial. What happens then, lawyers ask, if the police have a statement from a witness which exonerates the accused, but the prosecution do not have to hand it over to the defence as they will not be using it in the trial.
Former Law Society president Peter Low said: ‘What about statements taken from the accused or evidence collected by investigators which are not used in court? They could be of use to the defence but because the prosecution is not using them, the defence has no access.’
Another issue which criminal lawyers have long argued for is that a person who is arrested for a crime should get earlier access to counsel. Although this is believed to be one of the areas the review committee was looking at, it was not in the list of proposed changes.
But lawyer Amolat Singh said early access can be a ‘double-edged sword’ as the prosecution may argue that because an accused has seen a lawyer, he was aware of all his rights when he made the statements without the latter’s presence.
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