The Role Of Defence Counsel In Criminal Trials In Trinidad And Tobago
The Importance of Defence Counsel
Criminal Defence Counsel are Attorneys at Law who represent individuals charged with criminal offences. The role of defence counsel in the criminal justice system of Trinidad and Tobago is very important to the administration of justice. They are safeguards against the abuse of power, ensuring that prosecutions are conducted fairly, lawfully and in accordance with the presumption of innocence. A conviction is legitimate only where guilt is established through evidence that is lawfully obtained, that has been rigorously tested and proven beyond reasonable doubt. This burden of proving an accused person’s guilt is the responsibility of the State and not the Accused who is presumed innocent until proven guilty.
Obtaining Legal Representation
Presently, persons who are charged with a criminal offence can choose to retain an attorney privately or apply for representation through the Legal Aid and Advisory Authority (LAAA) if they cannot afford an attorney. The process of applying for legal aid begins with the completion of a form at any of the LAAA District offices (Port of Spain, Arima, Chaguanas or San Fernando). Once completed, the LAAA will send the form to the Court that has conduct of the matter for approval. Once approval is received, an attorney would be assigned. For matters in the High Court, the Public Defenders’ Department will assign someone to represent the person. If the matter is in the District/Magistrates’ Court, the relevant LAAA District Office will assign an Attorney at Law. The client is not required to pay as this is state-funded. Whether the attorney is appointed by legal aid or privately retained, they have the same function and is guided by the Legal Profession Act – Code of Ethics.
The Role and Function of Defence Counsel
- Ensuring a Fair Trial
The right to a fair hearing is entrenched in section 4(b) of the Constitution of the Republic of Trinidad and Tobago. This means that the process must be fair, and the Accused must have the opportunity to effectively challenge the case brought against him/her. Defence counsel is the guardian of these constitutional safeguards by ensuring that the accused is informed, represented, and protected throughout the proceedings.
- Preparing and Providing Legal Advice
The prosecution has an ongoing duty to disclose all relevant material to the case. Defence Counsel must analyse the material and advise the Accused based on their instructions and the evidence. Preparation also involves advising the Accused on strategic decisions, including whether to give evidence, what defences are available in law, whether to concede uncontested matters, etc. These decisions must be taken with full appreciation of the legal risks and evidential consequences.
- Challenging the Process of Investigation
Defence Counsel also performs a scrutinizing function in relation to the police investigation. This includes critically assessing arrest procedures, detention practices, interviewing of the accused, identification procedures, and the handling of exhibits. Defence Counsel can challenge and request the exclusion of evidence where it is obtained through the breach of constitutional or common-law standards.
- Challenging the Evidence
The principle that the prosecution bears the burden of proof beyond reasonable doubt lies at the heart of the criminal justice system. Defence Counsel ensures that this burden is neither diluted nor impermissibly transferred to the Accused. They must therefore ensure that evidential gaps are exposed and that reasonable doubt is properly articulated before the tribunal of fact. This is primarily done through challenging the evidence on the prosecution’s case.
- Cross-Examination of Witnesses
Cross-examination is the principal mechanism by which defence counsel tests the reliability and credibility of the prosecution’s evidence. It is not an exercise in aggression or performance, but a disciplined method of revealing inconsistency, error, or unreliability. Defence counsel may challenge eyewitness identification, expose weaknesses in forensic handling, and reveal investigative shortcomings.
- Legal Submissions
The purpose of legal submissions is to assist the Court in determining the legal issue. Defence Counsel serves not only the interests of the Accused but also assists the Court with correctly applying the law. There are various legal issues that arise in a matter and Defence Counsel is required to address same for example, making a “no-case submission” where the prosecution’s evidence fails to establish a case against the Accused.
- Plea in Mitigation
If an Accused person is found guilty or pleads guilty to an offence, Defence Counsel is required to assist the Court in sentencing and present a plea in mitigation on behalf of the Accused. Effective advocacy ensures that the punishment is proportionate and consistent with the legal framework. Defence Counsel must present mitigation, including, rehabilitative efforts, testimonials, personal circumstances such as family, employment and educational background on behalf of the Accused. If the Accused has a criminal record, Defence Counsel must also address same frontally.
- Ethical Duties
The ethical obligations of Defence Counsel can be found in the Code of Ethics in the Legal Profession Act which requires a duty to the client, candour to the Court and respect for the administration of justice. Counsel must not mislead the court even when faced with difficult instructions.
Ultimately, the role of Defence Counsel in criminal trials is critical and they have a significant responsibility in the administration of justice.
Submitted by: Aleena Ramjag
Public Defender II Junior
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Website: laaa.org.tt