&quot;Does not put forward a case inconsistent with the confession&quot; of guilt In New Zealand, duties of defence lawyers require them to &quot;not put forward a case inconsistent with the confession&quot; if the defendant confesses his/her guilt to them (13.13.2(a)). What exactly does that involve when the previously given not guilty plea continues? Does that mean that the lawyers no longer can explicitly claim that the defendant is not guilty but just say &quot;prove it&quot; to the prosecution? If so, how does maintaining not guilty plea not constitute putting &quot;forward a case inconsistent with the confession&quot;? Related: What options does a lawyer have if a client admits he is guilty but doesn&#39;t want to admit it to the court? What does a lawyer do if they know for absolute certain that their client is guilty?
A not guilty plea is not part of the case of a defendant or a defense attorney. A &quot;case&quot; refers to evidence and argument made at trial (or conceivably in a pre-trial hearing). The rule in question specifically contemplates a defense attorney entering a not guilty plea for a client who has confessed to the lawyer that the client is guilty of the crime (emphasis added). If at any time before or during a defended trial a client makes a clear confession of guilt to his or her defence lawyer, the lawyer may continue to act only if the plea is changed to guilty OR the lawyer— (a) does not put forward a case inconsistent with the confession; and (b) continues to put the prosecution to proof and, if appropriate, asserts that the prosecution evidence is inadequate to justify a verdict of guilty; and (c) does not raise any matter that suggests the client has an affirmative defence such as an alibi, but may proceed with a defence based on a special case such as insanity, if such a course appears in the lawyer’s professional opinion to be available. The attorney can argue that the defendant should be released from custody prior to trial, and over what terms of pre-trial release are appropriate. The attorney can advise the client not to do anything else that would make it easier for the prosecution to prove the client committed the crime (e.g. advising the client not to brag about having committed the crime on social media). The attorney can advise the client on how to behave in the courtroom so as to avoid contempt of court sanctions, and how to dress and behave appropriately and in a manner that the court will find to be sympathetic (e.g. wearing a suit to court, acting respectfully, not speaking ill of the victim). There are a variety of defenses not inconsistent with guilt that are available: One can argue that the statute of limitations has run. One can argue that the court that the case is being tried before does not have jurisdiction over the offense. One can argue that the crime was committed prior to the effective date of the law, or after it was repealed (if relevant). One can argue that the law in invalid under human rights treaties or similar grounds for invalidity. One can argue that the defendant has immunity from prosecution (e.g. due to diplomatic immunity, or because the defendant was acting pursuant to lawful military or court orders, or because of an agreement reached with a prosecutor previously perhaps in exchange for testimony in another case, or because the defendant acted based upon assurances from an authority upon whom he was entitled to rely that his actions would not be punished) One can argue that evidence is inadmissible for some legally recognized reason (e.g. lack of authentication or doctor-patient privilege or a marital privilege). One can argue that the facts presented by the prosecution don't establish the elements of the crime charged (e.g. no evidence has been presented that permission to use the property was not granted in a trespass case). One can argue that the facts presented don't establish the elements of the crime charged beyond a reasonable doubt even if some evidence is presented (but subject to limitations on what kinds of doubts may be suggested). One can make an insanity defense, or a lack of capacity to commit a crime defense. One can argue that a justification (e.g. self-defense) excuses the crime. In the U.S., an attorney could implicitly or even expressly make a jury nullification argument, but I do not know if this would be permitted in New Zealand or not. But one cannot argue, for example, that a different individual than your client committed the crime, or that the crime didn't happen at all. This ethical limitation, by the way, is much more restrictive than the limitation under U.S. law, which prohibits an attorney from introducing evidence or testimony known to be false or fraudulent, but does not generally prohibit making arguments based upon possible inferences from the true facts that the attorney knows to be false inferences (i.e. the facts are true, but the conclusions that the lawyer asks the court to draw from the facts are not consistent with what really happened). For example, a U.S. attorney could argue in a case with several co-defendants, that the victim might have been assaulted by one of the co-defendants rather than his client, based upon the evidence available, while a New Zealand attorney whose client had confessed to having assaulted the victim, couldn't ethically make that argument. A defense lawyer in either the U.S. or New Zealand could find a forensic science article showing that the technique used to link the bullet to the gun by police investigators is unreliable and use it to cross-examine a prosecution forensic expert. But, a New Zealand lawyer, unlike a U.S. lawyer, could probably not argue that there is alibi evidence putting your client on the other side of town at the time that the coroner erroneously believes the time of death to have occurred. Of course, any counsel or advocacy provided by defense counsel in connection with a sentencing phase of the proceeding would also not be inconsistent with this ethical rule and, in practice, much of the value that a defense attorney adds to the process for a defendant comes at that stage of the case.
Is there a way to accept civil liability without admitting a criminal violation? Are you allowed to tell the police, “I accept full responsibility for the accident, but I don’t wish to discuss what happened”? You can allow a default judgment as to liability to enter in a civil case (and then possibly even have a contested adversarial hearing on damages), or you can reach a settlement dismissing the case with prejudice in exchange for payment of a certain settlement without admission of liability. Indeed, this is what actually happens in about 90%+ of car accident cases that aren't resolved at trial or in a motion for summary judgment (something that is quite rare in a car accident case). Likewise, you can plea &quot;no contest&quot; or even being convicted following a trial of a traffic violation in connection with an accident, without the outcome of the traffic case having a binding effect on the outcome of a civil case, even though this seems contrary to the logic of how results in one case determine issues in other cases (called &quot;collateral estoppel&quot;). Basically, this rule has been enacted in most U.S. jurisdictions (usually by statute but in some rare cases by judicial decision), in order to prevent local traffic trial cases from turning into expensive high stakes battles that are really about liability for huge economic damages, in a traffic court process designed to efficiently deal with disputes in the tens to thousands of dollars at stake, rather than the tens of thousands to millions of dollars that are at stake in a personal injury case where there have been serious injuries. However, while the outcome and plea in a traffic case in not binding in a civil lawsuit involving a related accident, any testimony given under oath in one case can be used in the other case in almost all circumstances.
Misstating the truth is not perjury Perjury is deliberately lying under oath to gain a material advantage. For the situation you describe: You might be wrong and they actually do live where they say they do they might be wring and they genuinely think they live where they say they do, being wrong is not perjury it’s unlikely to administrate info in the form actually carries the penalty of perjury, it probably isn’t testimony unless it will positively and substantially affect the outcome of the case in their favour, it isn’t material You lack standing to interfere in the case in any event If this were brought to the attention of the court the most likely outcome would that it would just be corrected.
(As there are cases that remain sub judice, I will give only a general answer describing the disclosure process.) How does discovery disclosure work for financial crimes? Disclosure for all criminal investigations in England and Wales, including those in to financial crime, are carried out in accordance with Parts 1 and 2 of the Criminal Procedure and Investigations Act 1996 and its accompanying Code of Practice. A full explanation is given in the Code, but put briefly: the police appoint a Disclosure Officer whose role includes reviewing and assessing everything held by the police, called &quot;material&quot;, and passing details of all &quot;relevant material&quot; to the CPS appointed prosecutor. There are four stages in the police disclosure process, called the 4Rs: Record Retain Review Reveal These 4Rs overlap with three questions that require answering in order: Record and Retain: Q1: Is it &quot;relevant material&quot; to the investigation? If No, nothing further need be done. If Yes then Record and Retain it in a &quot;durable and retrievable format&quot; - write it down, save it to disc etc, keep it safe and in a place where it can be found. Review: Q2: Is it &quot;sensitive material&quot;? e.g. does it relate to informants, covert tactics, information given in confidence etc? Either way, two seperate schedules of relevant material according to its &quot;sensitivity&quot; are created. Reveal: The Disclosure Officer passes both schedules (and the actual material if necessary) to the CPS prosecutor who provides the defence with a copy of the non-sensitive schedule. The prosecutor also asks: Q3: Does the material &quot;undermine the case for the prosecution or assist the defence with theirs&quot;? If No, nothing further need be done. If Yes, the prosecutor must disclose the material to defence, unless it sensitive and giving it to the defence is not, for example, in the public interest as it may jeopardise life, covert operations etc. The prosecutor and police then has to decide whether to drop the case or not in order to protect the reason for the sensitivity. (They may also apply to the Crown Court judge for a Public Interest Immunity certificate which - in very, very rare cases - allows a trial to go ahead in the interests of justice without the defence being made aware of material that may assist their case as long as the whole trial process is fair to the defendant.) The defence, in addition to their copy of the non-sensitive schedule, can apply for sight or copies of and any material that they consider also undermines or assists but has not been disclosed to them by the prosecutor, and is necessary for their case. In the first instance this application is to the CPS prosecutor, but if it is refused the defence may apply to the trial judge for a ruling on whether it must be disclosed or not. The overriding principle is ensuring a fair trial. ETA: It it possible for a party to such a suit to bring evidence to the court without providing the underlying data to the other party? It is possible but the principles of a fair trial, disclosure and the continuity of evidence (what some call the chain of custody) coupled with challeges by the defence are supposed to ensure that the provenance and accuracy of evidence is properly tested and accountable at a Plea and Trial Preparation Hearing (PTPH) before a trial opens. Unfortunately, especially in highly complex investigations, this does not always seem to be the case.
Short Answer The concern raised is a real one, but it is much less serious than one might naively expect. Long Answer Precedents Apply Only To Resolve The Legal Arguments Presented On The Facts Found To Exist At Trial A Bad Lawyer's Failure To Develop Facts At Trial Isn't A Serious Problem A precedent determines the law as applied to a particular set of facts found by the trial court and confirmed as properly in the trial court record by the appellate court, as to a particular legal issue. Failure to prove facts at trial due to the fault of counsel for a party in the trial court changes the scope of the precedent. Failure to establish facts in one case that sets a precedent, doesn't prevent a similarly situated party, in a case with essentially the same actual facts, from doing a better job and thus presenting a set of facts that are not governed by the same precedent. The precedent from the ill argued case would not apply because the facts as found by the trial court would be different. A Bad Lawyer's Failure To Present Legal Arguments Isn't A Serious Problem if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer. Likewise, suppose that due to incompetence of counsel, a key legal argument isn't made. When a trial court lawyer makes that mistake, the precedent will merely resolve the legal arguments that were resolved by the trial court. This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments. For example, suppose that a trial, a lawyer for one side fails to argue that the statute of frauds (which requires certain contracts to be in writing) bars the claim, and the judgment in favor of other other side on an oral agreement is upheld on appeal. A lawyer in a new case with the same facts can move to dismiss the other side's claim based upon the statute of frauds, because the precedent upholding the oral agreement didn't resolve the question of whether the statute of frauds could be used to dismiss the claim arising under that agreement. There Aren't Better Alternatives To Sift Through Legal Arguments No lawyer can make every argument. The incentives of the system and the professional regulation of lawyers, however, increases the likelihood that the strongest arguments will be made to the court setting the precedent and in the trial court before an appellate court considers the issue, relative to pretty much any other means of clarifying ambiguous issues in the law, where the advocates for different legal rules usually don't have the same strong incentives to argue their cases as well as they possibly can. The Risk Posed By Ineffectual Rhetoric In Favor Of Good Rules Of Law Is Real But Limited This doesn't mean that bad lawyering doesn't give rise to bad precedents. But when this happens it is usually because for a given argument and set of facts, the lawyer for one side is so much more rhetorically effective in making a legal argument than the lawyer for the other side which is proposing a &quot;better rule&quot; of law. But the exclusion of people who can't finish law school and pass the bar exam from the process makes a truly decisive advantage for one party over another in rhetorical effectiveness fairly rare. To the extent that rhetorical failure in appellate briefing is the cause of a bad precedent, the long term systemic effect of this problem (some would call it a feature of the system rather than a flaw) is that the side with more resources that can afford to hire better lawyers will tend to produce legal results that favor similarly situated parties going forward. Thus, it produces a sort of diluted &quot;natural selection&quot; effect (a bias that is equally, if not more concerning, in the duel of lobbyists for all sides of an issue in the legislative process). The other safeguards discussed below, limit this risk, although not completely. Other Safeguards Subject-Matter Jurisdiction The requirement of an actual &quot;case and controversy&quot; for subject-matter jurisdiction, and the requirement of &quot;standing&quot; for subject-matter jurisdiction are designed to prevent someone from intentionally making straw man arguments on appeal that produce precedents that are bad law. Thoughtful Appellate Judges When Opinions Are Published Also, appellate court precedents are made by a panel of multiple (usually three at the first direct appeal level) experienced and esteemed judges who are acutely aware that the decisions that they are making in precedent setting cases influence the law in other cases which causes them to look beyond the arguments of the parties to resolve the dispute. It isn't at all uncommon in such cases for an appellate court to resolve a case on appeal on the basis of arguments not made by either party in their briefs, or precedents or statutes not mentioned by either party. Furthermore, most appellate court decisions are unpublished opinions that expressly determined by the panel making the decision not to make a binding precedent, which allows panels of judges in these cases to take less care to run afoul of the risk of making a bad decision due to bad lawyering by a party. So, in the minority of cases that are published and create binding precedents, judges are especially careful to consider this risk. Five More Safeguards The other main safeguards in the case law system against bad precedents due to poor lawyering by a party are: (1) the ability of uninvolved third-parties to file amicus briefs in connection with an appeal presenting perspectives on legal issues not presented by a party, (2) the ability of a state supreme court or the U.S. Supreme Court (or both) as the case may be, to overrule intermediate appellate court precedents that were wrongly decided, (3) the ability of legislatures to change non-constitutional legal rulings by statute, (4) the procedural requirement that the relevant state or federal attorney general be given notice and an opportunity to intervene in cases challenging the constitutionality of a law, and (5) the ability of the political process to amend the relevant constitution to address a bad binding precedent by a highest court on a constitutional issue that the legislature cannot fix. Collectively These Safeguards Help Somewhat None of these safeguards are fool proof. But, collectively, these safeguards reduce the risk of a bad precedent being established due to bad lawyering in an adversary system, that the inherent limitation of a precedent being limited to particular facts and particular legal arguments provides as a primary means of preventing. Other Causes Of Bad Precedents Are More Of A Problem In general, once all of the considerations above are taken together, the risk of a bad precedent being made due to bad lawyering, while it is real, is significantly smaller than the risk that a bad precedent will be made because the appellate judges rendering the precedent making opinion are bad judges. Bad judges usually end up as judges with appellate precedent making power because they were selected more based upon political considerations, as they are in many states, and in the federal system, rather than primarily based upon the soundness of their legal judgment. When one risk factor that can lead to a bad decision is much larger than another risk factor that can lead to a bad decision, further improvements in the smaller risk factor will rarely make all that much of a difference in the overall likelihood that the system will produce a bad precedent. So, the adversary system, is, on balance, good enough make the risk of bad precedents arising from bad lawyering a not very troubling problem with the system, even though it is a real risk that sometimes does produce bad precedents.
Bob will be convicted if he is found guilty beyond reasonable doubt. Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder. His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case. Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder. Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say &quot;Bob is in jail already, so it must have been Bill&quot;, because now Bob's first conviction looks very unsafe.
Can a jury render a verdict that contravenes with binding precedent? Yes, but (if it is a guilty verdict) it will be overturned on appeal. The appeal court will say that the jury's verdict was not one which any reasonable jury could have made on the basis of the evidence and the instructions in the case. As explained in Dave D's answer, the trial judge will have explained the law, including the binding precedent, to the jury. So if we get to this stage then the jury is disregarding instructions. The above process is the remedy. You may notice a 'gap' where the jury can unlawfully acquit a person and there's nothing anyone can do about it, because of the rule against double jeopardy (that is, you can't appeal against an acquittal). This is called jury nullification, because the jury has nullified the relevant criminal law by acquitting an offender.
I assume you mean to ask whether the guilt of the victim affects the validity of a crime-of-passion defence. canada In Canada, the only crime-of-passion type defence is provocation, today codified at s. 232 of the Criminal Code. Provocation is only relevant to a count of murder. If the person who committed what would otherwise be murder &quot;did so in the heat of passion caused by sudden provocation,&quot; then the conviction is reduced to manslaughter. Current codified defence: victim must have done something that would be an indictable offence punishable by five or more years of imprisonment One of the statutory requirements for a successful provocation defence is that the victim must have conducted themselves in a way that &quot;would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment.&quot; This is an objective element of the defence, not dependent on the perception of the accused. One court has found this limitation to the defence to be unconstitutional (R. v Simard, 2019 BCSC 531). However that court would still require that the &quot;conduct of the victim [to be] of such a nature as to be sufficient to deprive an ordinary person of the power of self-control...&quot; The common law and the previous codified defence also required provocative conduct by the victim Both the common law and the pre-2015 codification of the provcation defence required that the victim's provocative conduct be &quot;of such a nature as to be sufficient to deprive an ordinary person of the power of self-control&quot; (R. v. Cairney, 2013 SCC 55 at paragraphs 24-35). Burdens for establishing this defence The provocation defence is an &quot;air of reality&quot; defence (R. v. Cinous, 2002 SCC 29, paragraph 57). This means that there is an initial evidential burden on the accused. There must be evidence on the record that, if believed, could lead a reasonable properly instructed jury to acquit (or, in the case of provocation, to convict of manslaughter instead of murder). Once the accused meets this burden, then the defence is properly in play and will be successful unless the Crown disproves any element of the defence beyond a reasonable doubt.