One of the problems that we have as criminal lawyers is that pop culture is so full of great criminal law stories that everybody thinks they know how the system functions. Nothing could be further from the truth.
For one thing, 90 per cent of what people see on TV is based on the American system, which is dramatically different from ours in many respects. That creates some pitfalls for us because people expect things that just don’t exist here.
How long it takes to reach a resolution
The first myth that is presented through the media is the speed with which things can be resolved. On TV, a person may be charged, a week later they are in court, three weeks later they are in trial and the trial takes an hour and it’s over. Nothing could be further from the truth. After a person is charged in our system, he or she will appear in court for the first time probably six weeks later. At that court appearance, we may start to get some of the papers that are required to get the case rolling. We come back three weeks later and get some more and then we come back four weeks later and get video and then we come back three weeks later and meet with the Crown. And so it goes month after month. At some point we will set the case down for a trial and the people will be shocked to hear that they get a trial anywhere from six months to a year later. Then, they find that even though the case should only take an hour, there are three or four other cases on the docket. There is a lot of waiting around.
Managing clients’ expectations with respect to speed is one of the hardest things lawyers have to do. The legal process is complicated and it is not safe to rush a case through the system. When matters are sped up, it’s generally because you are conceding things to the Crown. You are saying that you don’t need all the disclosure you are entitled to, you don’t need to test the evidence of witnesses x, y and z, you don’t need to have a trial because you are prepared to plead guilty to whatever charges the Crown suggests. If you want to play the game the way the Crown wants you to play it, then sure, go right ahead. But if you want to get the best result possible, then you need to make sure that you’re utilizing all of the rights the system accords to you–and that can take time.
Dramatic cross-examination
Another misconception is what I describe to clients as “Matlock Madness.” Anybody who watched the TV program Matlock knew the format was always the same. The case would go to trial, and no matter what happened, Matlock would do a blistering cross-examination and at the end of it, the person he cross-examined would admit to the offense and the innocent client would walk away free. I don’t think it has ever happened in the history of my career that somebody on the stand suddenly broke down and admitted to an offense. Things just don’t happen that way.
Witnesses are more than willing to lie and by the time they get to trial, they are deeply entrenched in their lies or inaccuracies because of the many months it has taken to get to court. Cross-examination is much shrewder and much more careful. It’s about poking holes; it’s about exposing inconsistencies and finding weaknesses. Because clients expect that Matlock moment, they look for the most aggressive, angry, obstructionist lawyer they can find. They want somebody who hates the police, who is difficult on the Crown and who is going to turn every witness into a quivering pile of jelly during every cross-examination. There are times where that is warranted and there are times when our lawyers have had to do that. We have taken police officers to task and we have done very aggressive cross-examinations and we have motioned the Crown to death. That is not our starting point.
Our general approach is to be much more subtle and slip in behind enemy lines. We find that strategy is much more effective, earns us more credit with judges and juries, and makes our clients appear in a more favorable light. When the time comes to be aggressive, we will be aggressive, but only when the time calls for it. We assure clients that though they may hate the person who is on the stand, who got them into this trouble, and who is lying, that our cross-examination will succeed if it is a planned and nuanced one. Though shouting and drama may look impressive, it doesn’t get a client acquitted.
This article is taken from a August 10, 2007 interview with Ed Prutschi, Criminal Lawyer with Adler Bytensky Prutschi, a Toronto Criminal Law Firm Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.
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