The responsibilities of the advocate acting for the prosecution differ from those acting for the defence. He must see that every material point is made which supports the prosecution’s case or weakens the defendant’s case. He should present the case against the accused relentlessly but with scrupulous fairness. The names of all witnesses and material facts must be disclosed irrespective of whether the witnesses are detrimental to the prosecution’s case.
The prosecutor must state the relevant facts. In particular where the accused is unrepresented, he should mention any mitigating circumstances to the court. The prosecution must not in his opening address state as a fact anything which he knows or ought to know he is not in the position to prove.
Prosecutor must not deliberately withhold anything which seems to favour the accused. He must review all relevant cases and statutory provisions known to him irrespective of whether the information is of benefit to the prosecution case. This is so whether or not the prosecutor has been called upon to argue the particular law in question.
It is recommended that in a criminal case, the solicitor for the prosecution or defence who may wish to interview witnesses who have not already give evidence in the case of an indictable offence or who are known to be called as witnesses for the other side, to first communicate with the solicitor for the other side, informing him of his intention. It is advisable for the interview on behalf of the defence to take place in the representative from Garda Siochana who is not involved in the case.
The prosecution must not conceal from the opponent facts which are within the knowledge of the prosecutor, and which are inconsistent with the facts which the prosecutor has presented to the court. Prior to the commencement of the trial, where a prosecutor obtains evidence that may assist the defence or learns of a witness who may do so, he must supply the defence with the particulars of the evidence and the names of the witnesses.
During the trial if the prosecutor obtains evidence which he does not intend to use and may assist the defence, he must give it to the defence. If the prosecutor knows of a credible witness who can give evidence concerning material facts which tends to show the innocence of the accused, he must call that witness or make the witness statement available to the defence.
Solicitor Advocate for the Accused
The solicitor has a duty to ensure that the prosecution discharge the onus placed upon it to prove guilt beyond the reasonable doubt. In the absence of exceptional circumstances client’s privilege prevents the solicitor for making disclosure of privileged information without consent.
The defence advocate is under no duty to disclose to the court or prosecution or correct any information which may have been given to the court by the prosecution if the correction would be detrimental to the defendant. However, the advocate should not indicate agreement with information that the prosecution has put forward which the advocate knows to be incorrect.
The advocate for the defence is obliged to disclose to the prosecution in the court any relevant cases and statutory provision relating to his client’s case. He should not subject to alibi evidence disclose any evidence in relation to his client’s defence.
A solicitor should not stand bail for a person for whom he acts or his firm acts. It is unlawful for a solicitor or any other party to indemnify a surety for bail.
Duty to Court
If the court puts any question to the advocate as to the character of the defendant whether the character of the defendant is or is not in issue, the reply should be that question is not one for him to answer.
Where the prosecution outlines to the court the accused previous conviction but it is incorrect or incomplete to the knowledge of the solicitor for the defence, the solicitor if asked by the court to comment, should decline comment. Where not asked to comment, he should not be seen to corroborate the incorrect information furnished by the prosecution as this would amount to deception. However, the accused gives evidence to the court and in so doing accepts a list of previous convictions given which the advocate knows to be incorrect, the advocate must cease to represent the accused.
In criminal cases, it is a matter for the jury or the court and not for the advocate to decide the guilt or innocence of his clients. It is the solicitor’s duty to put the prosecution on proof of what it alleges. The solicitor may submit to the court that there is insufficient evidence that justify a conviction.
Where prior to commencement or during the course of a criminal case, a client admits to a solicitor that he is guilty of a charge, the solicitor need only decline to act in such proceedings if the client is insisting on giving evidence to deny such guilt or requires the making of a statement asserting his innocence.
Where the client has admitted his guilt to the solicitor, but will not be giving evidence, his solicitor may continue to act for him. The solicitor for the defence may advance any other defence which obliges the prosecution to prove guilt other than protesting the clients’ innocence.
There is a restriction on the withdrawal of a solicitor from the case where he has accepted instruction to appear on court for a client who is in custody. The solicitor cannot do so without obtaining permission of court before which the client is next scheduled to appear.
Where a solicitor acquires to have a consultation with the prisoner in custody in cells within the courthouse or in the immediate vicinity of the court, the solicitor should inform the court and seek to have the accused’s case put back to enable the consultation to take place.