In
trials, while one side tries to prove the guilt of the other side,
which is prosecution, the other side tries to prove its innocence, the
defence. Both sides strive to construct their own stories in a
consistent way around the evidences. Each side can have different
strategies in the constructing of their stories but story of the
prosecution must involve presence, action and state of mind to prove the
guiltiness of the defendant with evidences. In return to this, defence
struggle to challenge or deny presence, action or state of mind which
has demonstrated by the prosecution.
The prosecution must construct a story which is coherent in itself and complete to give a strong explanation for the defendant’s conducts because it is the duty of prosecution to prove the guilt of the defendant (Bennett & Feldman, p.94). Story given by the prosecution must include the evidences and story must be established on those evidences structurally. In addition to this, elements in the story must be believable and admissible with a reason for defendant’s behaviour (Lubet, 1990, p.77-78).
In this view, to construct a consistent story to prove the guilt of the defendant, prosecution develop fundamental elements, presence – action – state of mind, clearly and completely (Bennett & Feldman, 1981, p.94). Although each crime has its own characteristic, some basic components must be existed for every crime. As basic components, presence, action and state of mind are essential to compose a crime.
For further information on this issue, we can look the traditional way of analysing criminal offences. Traditional way of analysing criminal offence is to divide a crime up into the conduct of the accused (known as the actus reus or conduct element) and the state of mind of the accused (the mens rea).(Herring, 2008, p.78) One component of the crime is the conduct of defendants which is arranged by law as harmful and must be proved by the prosecution; the other component is the mental element of the offence which is related with offender’s mind (Herring, 2008, p.77-78). Both requirements for an offence must coincidence in time as a general principle (Herring, 2008, p.170). In this sense, one requirement for an offence is the proof of something done by the defendant and the other requirement is the mental state of the defendant.
In the perspective of preceding paragraphs, in order to convict the defendant of the crime the prosecution strategy must prove action of the defendant, his state of mind and his presence at the time of the crime. Those three components must be connected each other in a consistent way (Bennett & Feldman, 1981, p.95). Lack of any of the components (action – state of mind – presence) in the story of the prosecution causes deficits which provide benefits defence to challenge the consistency of story or causes to drop the case.
In detail, according to Bennett & Feldman, “the basic prosecution must attempt to represent defendant’s action within a coherent set of scenes, agencies, and purposes as the action develops over time. To satisfy the minimum structural criteria of a story, an actor and an act must be connected over time through scenes, purposes, and agencies; actor-scene-act; actor-purpose-act; actor-agency-act.” (Bennett & Feldman, 1981, p.96) With direct evidences “situatedness”, “intention” and “execution” or with circumstantial evidences “opportunity”, “motive” and “capacity” the triads above can be defined as “presence”, “state of mind” and “action” (Bennett & Feldman, 1981, p.96-97).
The prosecution must use its evidence to establish presence, action and state of mind in the story. In the structural order of the story all of the components must have consistent relations between them to create believability. Also causality among the parts of the story is another factor for the acceptability of the story. Any contradiction between the relations of components or any ambiguous definition, claim and evidence causes weaknesses that harm the credibility of the story.
On the other hand, the defence strategy attempts to change and challenge prosecution’s story in various ways. Where the defendant denies mens era (state of mind) or simply claims that he was not the person who committed the act of crime, the defendant in fact challenges the existence of one of the basic elements of the crime. If defence provides a reasonable doubt about one or more of the basic components, action-presence-state of mind, it is accepted that defence achieved its aim. (Dine, Gobert & Wilson, 2006, p.466). In this view, defence can challenge the structural adequacy of the prosecution’s story, attempt to find gaps, uncertainties and inconsistencies of the story or try to construct a different and new story to create any reasonable doubt in the presence, action or state of mind.
On this view Bennett & Feldman categorized the defence strategies in 3 main divisions; “challenge” strategy in which defence tries to demonstrate main definitions of the story components are lack of evidence or testimony; that prosecution’s story has some ambiguities and gaps. Secondly “redefinition”strategy in which defence tries to find a central story element that is ambiguous enough to provide for another definition. Lastly “reconstruction” strategy in which defence attempts to replace central action in a completely new story and by this way defence can offer an alternative reasonable story in the alleged criminal act. (Bennett & Feldman, 1981, p.98-106)
A lack of any of the components in the construction of the story permits acquittal of the defendant because that missing component creates some defects, which harms the plausibility of the prosecution’s story.
The prosecution must construct a story which is coherent in itself and complete to give a strong explanation for the defendant’s conducts because it is the duty of prosecution to prove the guilt of the defendant (Bennett & Feldman, p.94). Story given by the prosecution must include the evidences and story must be established on those evidences structurally. In addition to this, elements in the story must be believable and admissible with a reason for defendant’s behaviour (Lubet, 1990, p.77-78).
In this view, to construct a consistent story to prove the guilt of the defendant, prosecution develop fundamental elements, presence – action – state of mind, clearly and completely (Bennett & Feldman, 1981, p.94). Although each crime has its own characteristic, some basic components must be existed for every crime. As basic components, presence, action and state of mind are essential to compose a crime.
For further information on this issue, we can look the traditional way of analysing criminal offences. Traditional way of analysing criminal offence is to divide a crime up into the conduct of the accused (known as the actus reus or conduct element) and the state of mind of the accused (the mens rea).(Herring, 2008, p.78) One component of the crime is the conduct of defendants which is arranged by law as harmful and must be proved by the prosecution; the other component is the mental element of the offence which is related with offender’s mind (Herring, 2008, p.77-78). Both requirements for an offence must coincidence in time as a general principle (Herring, 2008, p.170). In this sense, one requirement for an offence is the proof of something done by the defendant and the other requirement is the mental state of the defendant.
In the perspective of preceding paragraphs, in order to convict the defendant of the crime the prosecution strategy must prove action of the defendant, his state of mind and his presence at the time of the crime. Those three components must be connected each other in a consistent way (Bennett & Feldman, 1981, p.95). Lack of any of the components (action – state of mind – presence) in the story of the prosecution causes deficits which provide benefits defence to challenge the consistency of story or causes to drop the case.
In detail, according to Bennett & Feldman, “the basic prosecution must attempt to represent defendant’s action within a coherent set of scenes, agencies, and purposes as the action develops over time. To satisfy the minimum structural criteria of a story, an actor and an act must be connected over time through scenes, purposes, and agencies; actor-scene-act; actor-purpose-act; actor-agency-act.” (Bennett & Feldman, 1981, p.96) With direct evidences “situatedness”, “intention” and “execution” or with circumstantial evidences “opportunity”, “motive” and “capacity” the triads above can be defined as “presence”, “state of mind” and “action” (Bennett & Feldman, 1981, p.96-97).
The prosecution must use its evidence to establish presence, action and state of mind in the story. In the structural order of the story all of the components must have consistent relations between them to create believability. Also causality among the parts of the story is another factor for the acceptability of the story. Any contradiction between the relations of components or any ambiguous definition, claim and evidence causes weaknesses that harm the credibility of the story.
On the other hand, the defence strategy attempts to change and challenge prosecution’s story in various ways. Where the defendant denies mens era (state of mind) or simply claims that he was not the person who committed the act of crime, the defendant in fact challenges the existence of one of the basic elements of the crime. If defence provides a reasonable doubt about one or more of the basic components, action-presence-state of mind, it is accepted that defence achieved its aim. (Dine, Gobert & Wilson, 2006, p.466). In this view, defence can challenge the structural adequacy of the prosecution’s story, attempt to find gaps, uncertainties and inconsistencies of the story or try to construct a different and new story to create any reasonable doubt in the presence, action or state of mind.
On this view Bennett & Feldman categorized the defence strategies in 3 main divisions; “challenge” strategy in which defence tries to demonstrate main definitions of the story components are lack of evidence or testimony; that prosecution’s story has some ambiguities and gaps. Secondly “redefinition”strategy in which defence tries to find a central story element that is ambiguous enough to provide for another definition. Lastly “reconstruction” strategy in which defence attempts to replace central action in a completely new story and by this way defence can offer an alternative reasonable story in the alleged criminal act. (Bennett & Feldman, 1981, p.98-106)
A lack of any of the components in the construction of the story permits acquittal of the defendant because that missing component creates some defects, which harms the plausibility of the prosecution’s story.
Further Reading
Bennett,
W. Lance and Feldman, Martha S. (1981), Reconstructing reality in the
courtroom:Justice and Judgement in American Culture, New Brunswick, New
Jersey: Rutgers University Press
Dine, J., Gobert J., & Wilson W. (2006), Cases and Materials on Criminal Law, Oxford: Oxford University Press
Herring, J. (2008), Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press
Schopp, Robert F. (1991), Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry, Cambridge: Cambridge University Press
Lubet, S. (1990), “the Trial as a Persuasive Story”, American Journal of Trial Advocacy, 14, p.77-95
Pickel, Kerri L. (1998), “The Effects of Motive Information and Crime Unusualness on Jurors’ Judgments in Insanity Cases”, Law and Human Behavior, 22, p.571-584
Umphrey, Martha M. (1999), “The Dialogics of Legal Meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility.” Law and Society Review, 33, p.393-423.
Dine, J., Gobert J., & Wilson W. (2006), Cases and Materials on Criminal Law, Oxford: Oxford University Press
Herring, J. (2008), Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press
Schopp, Robert F. (1991), Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry, Cambridge: Cambridge University Press
Lubet, S. (1990), “the Trial as a Persuasive Story”, American Journal of Trial Advocacy, 14, p.77-95
Pickel, Kerri L. (1998), “The Effects of Motive Information and Crime Unusualness on Jurors’ Judgments in Insanity Cases”, Law and Human Behavior, 22, p.571-584
Umphrey, Martha M. (1999), “The Dialogics of Legal Meaning: Spectacular Trials, the Unwritten Law, and Narratives of Criminal Responsibility.” Law and Society Review, 33, p.393-423.
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