Friday, January 15, 2010
Alexander Zahar (Griffith University - Griffith Law School) has posted How Judges Think: Strengthening Defence Approaches to Joint Criminal Enterprise and Closing Arguments (Annual Conference of the Defence Bar of the Court of Bosnia and Herzegovina, Sarajevo, December 12, 2009) on SSRN. Here is the abstract:
There is a method used by trial judges at the international criminal tribunals to decide the outcome of a case, and the method is rather fixed and inflexible. A defence lawyer working against the grain of the judges’ method is working in a way that is not as effective as it could be.
Trial judges at the ICTY are amenable to be persuaded that an otherwise solidly established legal principle has no application, or no reasonable application, to the facts at hand. The doctrine of joint criminal enterprise provides a good illustration of this point. Here we have a legal principle that is well established in theory, but rather vulnerable in practice. Many trial judges are instinctively aware of this vulnerability, which means that it is a promising area for the development of a defence strategy. At a more fundamental level, judges tend to think about an indictment and the whole resulting trial process in a very particular way. They analyse an indictment into certain elements and they employ their analysis to understand the evidence as it is received on a daily basis in the course of the trial. Their particular analysis defines, in effect, what is relevant and what is not relevant in a trial. It filters out distractions and facilitates a more active and engaged judicial role. The judges’ original analysis persists throughout the case and forms the template for the trial judgement at the end.
But while judges do seem to think in certain fixed ways, and while defence lawyers must take these into account if they are to be most effective, this fact doesn’t extinguish every possibility of creativity in defence strategy. On the contrary, it is still very possible to throw the prosecution off balance in unexpected ways. And it is possible to get the trial chamber to pay respectful attention. I illustrate this point by considering the neglected defences of reprisals and superior orders.