Aug 23 2021
Judges are increasingly frustrated with the quality of evidence provided by lawyers on behalf of convicted felons at sentencing hearings.
Several judges have raised concerns in public and private about the evidence presented in mitigating pleas, the stage of a case where lawyers try to ensure their clients receive as light a sentence as possible.
Judges, especially those at the Circuit Court which deals with the majority of serious offenses, criticized lawyers making allegations about clients, such as claims they have mental illness or addiction, without substantiating them with evidence corroborating.
They also expressed concerns about the quality of evidence presented to the court, in particular the practice of handing over unsigned documents as evidence to support a claim.
Any claim made by lawyers during a criminal trial must be supported by evidence. However, the rule tends to be applied less strictly during the sentencing phase of a case.
“Place a marker”
The most significant criticism came in June from the Court of Appeal, where Judge John Edwards “put a marker” that lawyers must provide proof of whatever they want to rely on in determination hearings. of the trouble.
He said the practice of lawyers giving hearsay without providing corroboration “happens all the time” and “must stop.”
In several recent cases before the Court of Appeal, Justice Edwards criticized lawyers for claiming, without evidence, that offenders suffered from depression, substance abuse problems or other trauma.
Unsubstantiated allegations have been made about a tragic family history, siblings with serious health issues, and clients who are in drug treatment or who do not use drugs, he said. Justice Edwards gave lawyers “a warning” that such practices must stop.
“This tribunal is demeaning a doer, it has to stop. If people are relying on mitigation issues, there has to be some evidence of that. “
According to a lawyer, judges are also increasingly “pissed off by people who deliver printed emails that are unsigned.”
Judge Martina Baxter, who was appointed to the Circuit Court in 2017, is among those who have repeatedly expressed her frustration with the quality of the evidence presented in mitigating pleas. She is notorious for rejecting evidence of a drug treatment or medical condition unless it takes the form of a signed document.
Lawyers who spoke to The Irish Times said Judge Edwards’ ruling was the culmination of a growing sense of frustration expressed by judges over the quality of mitigating pleas.
“You’re less likely to get away with just saying ‘my client is depressed’ or ‘my client’s mother is very sick’ unless you have a document or witness to back it up. It still happens, but it is slowly changing, ”said a criminal defense lawyer.
Another defense expert said such unsubstantiated claims are usually made at the insistence of clients. They described a recent case involving the conviction of a defendant for fraud in which the client requested that four references be given to the judge. Their lawyer advised against this after noticing strong similarities between the four references.
“Many of us will welcome [Mr Justice Edwards’ judgment] because we can point it out and say to the client “look, we can’t make that claim without proof”.
Submitting unsubstantiated claims during mitigation rarely has much of an impact on the final sentence, lawyers said.
“It’s usually about grabbing straws,” one said. “You kind of say these things with the goal of keeping the customer happy knowing that it probably won’t affect the sentence much one way or the other.”