In this monthly series, a young litigator shares insights into his work with accused persons, especially those facing the death penalty. Each edition will walk through a particular phase of the criminal litigation process. It is his fervent hope that one day, we can all learn to empathize with, and not just vilify, those accused of crime. The instinct for retributive punishment may be ever-present, but surely a modern society must also seek to understand its citizens who have strayed off the straight and narrow – if not for their benefit, then for ours.
Perspectives from a Criminal Defense Lawyer in Capital Trials
#2 – The Client
A person arrested or charged with an offence in Singapore does not have the right to immediately call a lawyer for advice. While our Constitution does enshrine a right of access to counsel, it does not specify when this can be enforced. A previous challenge to say that this should be within 48 hours of arrest was rejected by the Court of Appeal [1], which held that a “reasonable” amount of time should be allowed for investigations to complete, during which time the accused person can be denied access to counsel. What is a “reasonable” length of time depends on the facts of each case, and the Courts have held [2] that a timespan as long as 29 days is not unreasonable.
A lot happens during this time. The police would be working the ground, collecting evidence and interviewing potential witnesses. The accused person would be separately interviewed, usually multiple times, by the investigation officer(s). No doubt, he would be read his rights [3], but in Singapore, the Criminal Procedure Code allows the Court to draw adverse inferences from mere silence. And bearing in mind that he would not have had access to legal advice, it would not be unusual for the accused person to give several statements to the police during this period, often painfully rich in detail.
It is near-impossible to overstate the importance of these statements. Many a case stands or falls on them. If they are inconsistent, the accused person loses creditworthiness. If they are missing a detail which later emerges during the trial, he will be accused of crafting an “afterthought” defence. If they tell a story different from what the defence presents at trial, the accused person is painted as an out-and-out liar. The consequence? The unfortunate perception that nothing the defence says should be believed – and that the truth is what the prosecution says it is.
An altogether terrifying thought, considering that most of us do not know that this is the way our criminal justice process works, and are therefore ill-prepared for it.
On average, by the time defence counsel get to meet the accused for the first time, months would have passed since the initial arrest. Prison inmates in Singapore reportedly [4] spend 23 hours a day in their cells. Having committed a serious crime (or been accused of one), awaiting trial for their lives, what would they be thinking about? In all likelihood, the events of that particular moment which had landed them in prison.
But human memory is embarrassingly, not to mention notoriously, fallible. Research [5] suggests that the very act of bringing up a memory puts it at risk of modification. Now imagine if this is done multiple times a day, over several consecutive days, for months or even years. Even independent eyewitnesses with no interest in distorting the truth have misremembered. In the United States, a not insignificant number of persons falsely convicted and sentenced to death have been exonerated [6] years later by DNA evidence.
The result is that by the time of the initial client interview, there are several accounts to juggle. There is the account of the (alleged) crime itself. There is the issue of whether this matches the account that the accused person had signed off to in his police statements (or vaguely remembers signing). Very often, they do not remember the contents of their statement(s) – even if we, as defence counsel, are told that they do. To complicate matters, these statements are not given to the accused person or defence counsel until relatively late in the trial process, if at all. So, we go into this first meeting with nothing more than the charge and perhaps a newspaper report, which we use to prompt our questions.
It should not be too difficult to imagine and agree with the proposition that what is significant about a case differs, depending on one’s perspective, background and interests. So we can expect the questions asked by a police officer recording a statement to differ from those asked by a defence lawyer taking instructions at the initial client meeting. And of course, both these perspectives will differ from that of the accused person himself. Some have gone so far as to declare in their initial police interviews that they committed the crime and did not wish to live anymore. Others have declared that “you can write whatever you want, I don’t care.”
Forensic evidence, eyewitness testimony and other pieces of objective evidence can tell us whether the physical criminal act has been carried out. There is no equivalent for mental culpability. Save for a limited sphere of offences for which strict liability is imposed for public policy reasons, the vast majority of criminal offences require an intention to carry out the criminal act (or, at the very least, a failure to take reasonable care not to). Then there is the issue of recognizing the diminished culpability of mentally disturbed persons, or those who had momentarily lost control of their impulses. Members of civilized society would accept that a person who had not intentionally committed a crime should not be held to the same standard of accountability as someone who had.
But how does one go about proving this? The eyes may be the window to the soul, but most of us are still terribly poor at spotting the truth. Neither has psychiatry advanced to the point where experts usually agree on a particular diagnosis – the evidence for this is every case in which the prosecution and defence each proffer their own psychiatrists who may agree on the objective diagnostic criteria for a particular mental disorder, but disagree on whether this applies to the accused person on trial.
Peering into one’s own mind is a difficult endeavor. Peering into the mind of someone other than oneself, even more so. This is the unenviable task of the judge in every case where the mens rea constituting the offence is in dispute. There is no way to objectively measure (if that is the right word) mens rea. At best, it has to be inferred from all of the surrounding circumstances, the accused’s police statements and his testimony on the stand. Being more contemporaneous and proximate in time to the alleged crime, the police statements will invariably be given far greater weight than the later courtroom testimony.
In the immediate aftermath of an arrest, the only companions an accused person knows are his police captors, who have him at their mercy until they are satisfied with the quality of his statements and their external investigations. Much has been said about the value of cross-examination in ascertaining “truth” in the courtroom, but we forget that an initial “cross-examination” has already taken place in the lockup, with little judicial oversight and no one to advocate for or advise the person being cross-examined.
Some may say that this is the best way to get at the truth. The question we should ask is: must “truth” come at the expense of due process and individual liberties?
This article is written by Chooi Jing Yen from Eugene Thuraisingam LLP.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
[1] https://www.todayonline.com/singapore/law-reasonable-time-accused-gets-access-counsel-clear-court-appeal (last accessed on 9 December 2019)
[2] https://www.theonlinecitizen.com/2014/05/19/the-right-to-legal-counsel/ (last accessed on 9 December 2019)
[3] https://sso.agc.gov.sg/Act/CPC2010?ProvIds=P1IV-#pr23- (last accessed on 9 December 2019)
[4] https://www.prison-insider.com/countryprofile/prisons-singapore (last accessed on 9 December 2019)
[5] https://www.nationalgeographic.com/science/phenomena/2013/05/20/when-memories-are-remembered-they-can-be-rewritten/ (last accessed on 9 December 2019)
[6] https://www.bbc.com/news/science-environment-24286258 (last accessed on 9 December 2019)