Training Day 3: Case Theory and Preparing a Case for Trial + Evidentiary Issues

In the post below, NACDL Indigent Defense Counsel John Gross describes the third day of the training workshop.

18 June 2014

Last night we were reminded that it is the rainy season in Liberia. Just as we got back to the guest house, after our tour of Kakata, the sky opened up. It seemed as though the rain was hitting the roof all at once, in a steady stream, so that the sound coming from the metal roof was not the ping of raindrops but the roaring of a river.

The first few days of our training focused the role of defense counsel and pre-trial issues. During that time we were able to use portions of the Training Manual and Practice Manual as references as we took the participants through various exercises. When drafting the Practice Manual and the Training Manual for the Liberian public defenders, we were fortunate to have an excellent online resource: The Liberian Legal Information Institute. LiberLII was created in response to the disastrous effects the crisis in Liberia had on the Liberian legal system. Liberians didn’t have Westlaw or Lexis to compile their laws and court decisions, they relied on printed material. Many of those materials were lost or destroyed during the wars and the materials that survived were scattered throughout the country.

LiberLII is an online law library that was created by scanning printed materials, including statutes, judicial opinions and law review articles into a searchable database. With LiberLII as a resource, we were able to gain access to Liberia’s rich legal tradition, including over 150 years of Liberian Supreme Court precedent. Although LiberLII is a free on-line resource, Liberian public defenders often practice in areas where access to electricity is limited, let alone access to the Internet. The irony was not lost on us that LiberLII gives a lawyer in the United States an almost unlimited ability to research Liberian case law, while public defenders in Liberia have very limited access to the decisions of their own Supreme Court.

But on Wednesday the focus shifted to developing a case theory and preparing a case for trial. While both the Practice Manual and the Training Manual contained a lot of valuable information, developing a persuasive theory of the case is something that can’t be achieved by following a set of instructions in a manual. We were concerned about developing realistic fact patterns that we could use during our training. Fortunately for us, a question we had about a phrase in one of the Liberian Supreme Court opinions we had found on LiberLII led Martin Sabelli to develop a fact pattern that we used to teach case theory.

In that decision, a defendant was charged with murdering his wife; the defendant claimed that his wife had been killed by a “heart man” who had attacked her while the two of them were walking home at night. We asked our Liberian colleagues what a “heart man” was and we were told that the term refers to someone who kills for ritualistic purposes. The “heart man” believes that by taking the life of another, by taking their “heart,” they will receive some benefit or gain some advantage over others. Martin thought the idea of a “heart man” so sensational that he constructed a legal hypothetical where a defendant who was charged with murder was claiming that he acted in self-defense because he thought he was about to be attacked by a heart man. Martin and Lisa then worked with the Liberian public defenders to identify both the good and the bad facts in the hypothetical and demonstrated how they could use those facts to construct a persuasive theory of the case.

Later that day, Elizabeth and I worked with the Liberians on evidentiary issues. The admission of hearsay is a serious issue in Liberian trial courts. The public defenders said that the problem is in part due to the fact that prosecutors don’t interview their witnesses prior to trial, so they often call a witness who testifies that he is certain that the defendant is guilty because he was told by someone he trusts that the defendant committed the crime. One of the other issues the public defenders said made their job even more challenging was that the typical juror in Liberia has very little formal education. We take it for granted that jurors know about the presumption of innocence, reasonable doubt, the right to remain silent and that they would be skeptical of hearsay evidence. That is a luxury the Liberian public defenders don’t have.

As we worked with the Liberians on articulating a theory of the case and on making objections one thing that we were all struck by is how skilled they are at oral advocacy. They speak with great conviction and they drive home every point with an authoritative gesture. It is very clear that they are passionate advocates and that our goal should be to merge that passion with precision.

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