1

Alibi
An alibi is a defense used in criminal procedure where the accused attempts to prove that they
were in some other place at the time the alleged offense was committed. Alibi is different from all of
the other defenses; it is based upon the premise that the defendant is truly innocent.
“In Latin, alibī means "somewhere else."

False alibi

The giving of a false alibi, besides resulting in possible subsequent criminal offences Giving a false
alibi may be used by the court as actual evidence of guilt, provided certain requirements are met.
Specifically:

 The alibi must not be believed;

 There is evidence of an intention to fabricate the alibi that is independent from the evidence
used to show the alibi is false; and

 The court must reject all innocent explanations offered that would explain why a false alibi
was fabricated.
BENCH In LAW
The term "bench" is also used to mean all the judges of a certain court or members of a
judiciary. Bench in legal contexts means simply the location in a courtroom where a judge
sits. The historical roots of that meaning come from judges formerly having sat on long
seats or benches (freestanding or against a wall) when presiding over a court. The bench is
usually an elevated desk area that allows a judge to view the entire courtroom.
JUDGE
A judge is a person who presides over court proceedings, either alone or as a part of a
panel of judges. The powers, functions, method of appointment, discipline, and training of
judges vary widely across different jurisdictions. The judge is supposed to conduct the
trial impartially and, typically, in an open court. The judge hears all the witnesses and
any other evidence presented by the barristers of the case, assesses the credibility and
arguments of the parties, and then issues a ruling on the matter at hand based on his or
her interpretation of the law and his or her own personal judgment.
The ultimate task of a judge is to settle a legal dispute in a final and public manner, and thus
affirm the rule of law. Judges exercise significant governmental power. They can order
police, military or judicial officials to execute searches, arrests, imprisonments, seizures,
deportations and similar actions. Judges must be able to research and process extensive
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lengths of documents and other case material, understand complex cases and possess a
thorough understanding of the law and legal procedure, which requires excellent skills in
logical reasoning, analysis and decision-making. Excellent writing skills are also a necessity,
given the finality and authority of the documents written. Judges work with people all the
time; by the nature of the job, good dispute resolution and interpersonal skills are a
necessity. Judges are required to have good moral character, i.e. there must be no history
of crime.

CLOSING ARGUMENT
A closing argument, summation, or summing up is the concluding statement of each party's
counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A
closing argument occurs after the presentation of evidence. A closing argument may not contain
any new information and may only use evidence introduced at trial. It is not customary to raise
objections during closing arguments, except for egregious behavior. However, such objections,
when made, can prove critical later in order to preserve appellate issues.
the plaintiff is generally entitled to open the argument. The defendant usually goes second. The
plaintiff or prosecution is usually then permitted a final rebuttal argument. In some jurisdictions,
however, this form is condensed, and the prosecution or plaintiff goes second, after the defense,
with no rebuttals. Either party may waive their opportunity to present a closing argument.
During closing arguments, counsel may not (among other restrictions) vouch for the credibility of
witnesses, indicate their personal opinions of the case, comment on the absence of evidence that
they themselves have caused to be excluded, or attempt to exhort the jury to irrational, emotional
behavior.
In some countries (e.g. France or Germany), in criminal cases, the defendant's counsel always
makes his closing argument last, after the public prosecutor or any other party. Sometimes the
defendant is allowed to address the court directly after his or her counsel's closing argument.
In a criminal law case, the prosecution will restate all the evidence which helps prove each element
of the offence. In the USA, there are often several limits as to what the prosecution may or may not
say, including precluding the prosecution from using a defendant's exercise of his Fifth Amendment
right to silence as evidence of guilt.[2] One of the most important restrictions on prosecutors,
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however, is against shifting the burden of proof, or implying that the defense must put on evidence
or somehow prove the innocence of the defendant.
In some cases, a judge's presentation of the jury instruction is also known as summing up. In this
case, the judge is merely articulating the law and questions of fact upon which the jury is asked to
deliberate.
The purposes and techniques of closing argument are taught in courses on Trial Advocacy.[3] The
closing is often planned early in the trial planning process.[4] The attorneys will integrate the closing
with the overall case strategy through either a theme or theory or, with more advanced strategies, a
line of effort. The prosecution should also state the main points and be sure to give their side of the
argument and to be emotional
COURT ROOM LEGAL TERMINOLOGIES
Ex post facto law
An ex post facto law ( 'out of the aftermath') is a law that retroactively changes the legal
consequences (or status) of actions that were committed, or relationships that existed,
before the enactment of the law. In criminal law, it may criminalize actions that were legal
when committed; it may aggravate a crime by bringing it into a more severe category than
it was in when it was committed; it may change the punishment prescribed for a crime, as
by adding new penalties or extending sentences; or it may alter the rules of evidence in
order to make conviction for a crime likelier than it would have been when the deed was
committed. Conversely, a form of ex post facto law commonly called an amnesty law may
decriminalize certain acts. A pardon has a similar effect, in a specific case instead of a class
of cases. Other legal changes may alleviate possible punishments (for example by replacing
the death sentence with lifelong imprisonment) retroactively.
Prima facie
Prima facie is a Latin expression meaning on its first encounter or at first sight. The literal
translation would be "at first face" or "at first appearance". The term prima facie is used in
to signify sufficient corroborating evidence appears to exist to support a case. In common
law jurisdictions, prima facie denotes evidence that, unless rebutted, would be sufficient to
prove a particular proposition or fact. An aim of the doctrine of prima facie is to prevent
litigants from bringing spurious charges which simply waste all other parties' time.
Burden of proof
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In most legal proceedings, one party has a burden of proof, which requires it to present
prima facie evidence for all of the essential facts in its case. If it cannot, its claim may be
dismissed without any need for a response by other parties. A prima facie case might not
stand or fall on its own; if an opposing party introduces other evidence or asserts an
affirmative defense it can only be reconciled with a full trial. Sometimes the introduction of
prima facie evidence is informally called making a case or building a case.
For example, in a trial under criminal law the prosecution has the burden of presenting
prima facie evidence of each element of the crime charged against the defendant. In a
murder case, this would include evidence that the victim was in fact dead, that the
defendant's act caused the death, and evidence that the defendant acted with malice
aforethought. If no party introduces new evidence, the case stands or falls just by the prima
facie evidence or lack thereof. Prima facie evidence does not need to be conclusive or
irrefutable: at this stage, evidence rebutting the case is not considered, only whether any
party's case has enough merit to take it to a full trial.

Res ipsa loquitur

Prima facie is often confused with res ipsa loquitur ("the thing speaks for itself", or literally
"the thing itself speaks"), the common law doctrine that when the facts make it self-evident
that negligence or other responsibility lies with a party, it is not necessary to provide
extraneous details, since any reasonable person would immediately find the facts of the
case.
The difference between the two is that prima facie is a term meaning there is enough
evidence for there to be a case to answer, while Res ipsa loquitur means that the facts are
so obvious a party does not need to explain any more. For example: "There is a prima facie
case that the defendant is liable. They controlled the pump. The pump was left on and
flooded the plaintiff's house. The plaintiff was away and had left the house in the control of
the defendant. Res ipsa loquitur."
Accessory (legal term)
An accessory is a person who assists in the commission of a crime, but who does not
actually participate in the commission of the crime as a joint principal. The distinction
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between an accessory and a principal is a question of fact and degree: The principal is the
one whose acts or omissions, accompanied by the relevant mens rea (Latin for "guilty
mind"), are the most immediate cause of the actus reus (Latin for "guilty act").
If two or more people are directly responsible for the actus reus, they can be charged as
joint principals (see common purpose). The test to distinguish a joint principal from an
accessory is whether the defendant independently contributed to causing the actus reus
rather than merely giving generalised and/or limited help and encouragement.
In some jurisdictions, an accessory is distinguished from an accomplice, who normally is
present at the crime and participates in some way. An accessory must generally have
knowledge that a crime is being, or will be committed. A person with such knowledge may
become an accessory by helping or encouraging the criminal in some way. The assistance
to the criminal may be of any type, including emotional or financial assistance as well as
physical assistance or concealment.
Conspiracy
A person who incites another to a crime will become a part of a conspiracy if agreement is
reached, and may then be considered an accessory or a joint principal if the crime is
eventually committed.
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

Where two or more persons form an intention in common to carry out an unlawful purpose
and to assist each other therein and any one of them, in carrying out the common purpose,
commits an offence, each of them who knew or ought to have known that the commission
of the offence would be a probable consequence of carrying out the common purpose is a
party to that offence.

An accessory after the fact to an offence is one who, knowing that a person has been a party
to the offence, receives, comforts or assists that person for the purpose of enabling that
person to escape. For these purposes, abetting means "to encourage or set on" and an
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abettor is "an instigator or setter on, one who promotes or procures a crime to be
committed..."

PROSECUTOR
A prosecutor is a legal representative of the prosecution.. The prosecution is the legal
party responsible for presenting the case in a criminal trial against an individual accused of
breaking the law. Typically, the prosecutor represents the government in the case brought
against the accused person. Prosecutors are typically lawyers who possess a law degree,
and are recognized as legal professionals by the court in which they intend to represent
society (that is, they have been admitted to the bar). They usually only become involved in
a criminal case once a suspect has been identified and charges need to be filed. They are
typically employed by an office of the government, with safeguards in place to ensure such
an office can successfully pursue the prosecution of government officials. Often, multiple
offices exist in a single country, especially in those countries with federal governments
where sovereignty has been bifurcated or devolved in some way.
Plaintiff/claimant
A plaintiff is the party who initiates a lawsuit (also known as an action) before a court. By
doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment
in favor of the plaintiff and make the appropriate court order (e.g., an order for damages).
"Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, In some
jurisdictions the commencement of a lawsuit is done by filing a summons, claim form or a
complaint. These documents are known as pleadings, that set forth the alleged wrongs
committed by the defendant or defendants with a demand for relief. In other jurisdictions
the action is commenced by service of legal process by delivery of these documents on the
defendant by a process server; they are only filed with the court subsequently with an
affidavit from the process server that they had been given to the defendant according to the
rules of civil procedure.
Defendant
A defendant is a person accused of committing a crime in criminal prosecution or a person
against whom some type of civil relief is being sought in a civil case.
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Criminal defendants
In a criminal trial, a defendant is a person accused (charged) of committing an offense (a
crime; an act defined as punishable under criminal law). The other party to a criminal trial
is usually a public prosecutor, but in some jurisdictions, private prosecutions are allowed.
Criminal defendants are often taken into custody by police and brought before a court
under an arrest warrant. Criminal defendants are usually obliged to post bail before being
released from custody. For serious cases, such as murder, bail is often refused. Defendants
must be present at every stage of the proceedings against them. (There is an exception for
very minor cases such as traffic offenses in jurisdictions which treat them as crimes.) If
more than one person is accused, the people may be referred as "co-defendant" or "co-
conspiritor" In some jurisdictions, vulnerable defendants may be able to get access of
services of

Suspect
In law enforcement jargon, a suspect is a known person accused or suspected of
committing a crime. Police and reporters use the word suspect as a jargon when referring
to the perpetrator of the offense However, in official definition, the perpetrator is the
robber, assailant, counterfeiter, etc.—the person who committed the crime. The distinction
between suspect and perpetrator recognizes that the suspect is not known to have
committed the offense, while the perpetrator—who may not yet have been suspected of the
crime, and is thus not necessarily a suspect—is the one who did. The suspect may be a
different person from the perpetrator, or there may have been no actual crime, which
would mean there is no perpetrator.
A common error in police reports is a witness description of the suspect (as a witness
generally describes a perpetrator, while a mug shot is of suspect). Frequently it is stated
that police are looking for the suspect, when there is no suspect; the police could be looking
for a suspect, but they are surely looking for the perpetrator, and very often it is impossible
to tell from such a police report whether there is a suspect or not.
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Possibly because of the misuse of suspect to mean perpetrator, police in the early 21st
century began to use person of interest, possible suspect, and even possible person of
interest, to mean suspect.

CRIMINAL LAW DEFINITION OF TERMS

 law
The collection of rules imposed by authority
 statutory law
The body of laws created by legislative statutes
 penal code
the legal code governing crimes and their punishment
 case law
a law established by following earlier judicial decisions
 common law
a law established by following earlier judicial decisions
 rule of law
a state of order in which events conform to the law
 jurisprudence
the branch of philosophy concerned with the law
 criminal law
the body of law dealing with crimes and their punishment
 civil law
the legal code of ancient Rome
 tort
a wrongdoing for which an action for damages may be brought
 administrative law
the body of rules and regulations and orders and decisions created by
administrative agencies of government
 precedent
an example that is used to justify similar occurrences
 felony
a serious crime, such as murder or arson
 misdemeanor
a crime less serious than a felony
 offense
a failure to show regard for others
 infraction
a violation of a law or rule
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 treason
a crime that undermines the offender's government
 espionage
the systematic use of spies to obtain secrets
 actus reus
activity that transgresses moral or civil law
 mens rea
Criminal intent
 criminal negligence
(law) recklessly acting without reasonable caution and putting another person at
risk of injury or death (or failing to do something with the same consequences)
 motive
the reason that arouses action toward a desired goal
 concurrence
the property of two things happening at the same time
 ex post facto
affecting things past
 elements
violent or severe weather
 corpus delicti
the body of evidence that constitute the offence
 Islamic law
the code of law derived from the Koran and from the teachings and example of
Mohammed
 Tazir crime
Minor crimes committed by Muslims
 defense
the act of guarding someone or something against attack
 alibi
proof that someone accused of a crime could not have done it
 justification
the act of defending or explaining by reasoning
 excuse
a defense of some offensive behavior
 self-defense
the act of defending yourself
 entrapment
missing
 double jeopardy
the prosecution of a defendant for a criminal offense for which he has already been
tried; prohibited in the fifth amendment to the United States Constitution
 substantive
having a firm basis in reality and therefore important
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 inchoate
only partly in existence; imperfectly formed
 culpable
deserving blame or censure as being wrong or injurious
 collateral
accompanying; following as a consequence
 estoppel
a rule of evidence whereby a person is barred from denying the truth of a fact that
has already been settled
 vagrancy
the state of wandering from place to place
 conspiracy
a plot to carry out some harmful or illegal act
 negligent
characterized by undue lack of attention or concern
 mitigate
lessen or to try to lessen the seriousness or extent of
 lewd
suggestive of or tending to moral looseness
 lascivious
driven by lust
 duress
compulsory force or threat
 fraud
intentional deception resulting in injury to another person
 conflagration
a very intense and uncontrolled fire
 inducement
a positive motivational influence
 incompetent
not qualified or suited for a purpose
 alter ego
a very close friend who seems almost a part of yourself
 CRIMINAL LAW- is that branch or division of law which defines crimes, treats
of their nature, and provides for their punishment.
 CRIME- crime is defined as an act committed or omitted in violation of public
law forbidding or commanding it.
 GENERAL (characteristic of criminal law) – general, in that criminal law is
binding on all persons who live or sojourn in Philippine territory.
 TERRITORIAL (characteristic of criminal law) - in that criminal law undertakes
to punish crimes committee within Philippine territory.
 PROSPECTIVE-(characteristic of criminal law)- in that a penal law cannot make
an act punishable in a manner in which it was not punishable when committed.
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 FRENCH RULE- such crimes are not triable in courts of that country, unless
their commission affects the peace and security of the territory or the safety of
the state is endangered
 ENGLISH RULE-such crimes are triable in that country, unless they merely
affect things within the vessel or they refer to the internal management thereof
 . FELONIES- felonies are acts and omissions punishable by the revised penal
code.
 ACT- any bodily movement tending to produce some effect in the external
world.
 OMISSION- is meant inaction, the failure to perform a positive duty which one
is bound to do
 MISTAKE OF FACT- is a misapprehension of fact on the part of the person who
caused injury to another.
 MALA IN SE- wrongful from their nature, those so serious in their effects on
society as to call for the almost unanimous condemnation of its members and
defined and penalized by the Revised Penal Code.
 MALA PROHIBITA- wrong merely because prohibited by statute, are violations
of mere rules of convenience designed to secure a more orderly regulation of
the affairs of society. The term mala prohibita refers generally to acts made
criminal by special laws.
 INTENT- intent is the purpose to use a particular means to effect such result.
 MOTIVE- motive is the moving power which impels one to action for a definite
result.
 CONSUMMATED FELONY- a felony is consummated when all the elements
necessary for its execution and accomplishment are present.
 FRUSTRATED FELONY- when the offender performs all the acts of execution
which would produce the felony as a consequence but which nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator.
 ATTEMPTED FELONY- when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
 OVERT ACTS- an overt act is some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or
preparation, which if carried to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.
 INDETERMINATE OFFENSE- one where purpose of offender in the performing
an act is not certain. Its nature in relation to its objective is ambiguous.
 CONSPIRACY- conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it.
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 PROPOSAL- there is a proposal when the person who has decided to commit a
felony proposes its execution to some other person or persons.
 IMPUTABILITY- is the quality by which an act may be ascribed to a person as
its author or owner. It implies that the act committed has been freely and
consciously done and may, therefore, be put down to the doer as his very own.
 RESPONSIBILITY- is the obligation of suffering the consequences of crime. It is
the obligation of taking the penal and civil consequences of the crime.
 GUILT- guilt is an element of responsibility, for a man cannot be made to
answer for the consequences of a crime unless he is guilty.
 GRAVE FELONIES- are those to which the law attaches the capital punishment
or penalties which in any of their periods are afflictive.
 LESS GRAVE FELONIES- are those which the law punishes with penalties
which in their maximum period are correctional.
 LIGHT FELONIES- are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding 200 pesos, is provided.
 JUSTIFYING CIRCUMSTANCES- are those where the act of a person is said to
be in accordance with law, so that such person is deemed not to have
transgressed the law and is free from both criminal and civil liability.
 EXEMPTING CICUMSTANCES (non-imputability) - are those grounds for
exemption from punishment because there is wanting in the agent of the crime
any of the conditions which make the act voluntary, or negligent.
 MITIGATING CIRCUMSTANCES- those which, if present in the commission of
the crime, do not entirely free the actor from criminal liability but only serve to
reduce the penalty.
 AGGRAVATING CIRCUMSTANCES- are those which, if attendant in the
commission of the crime, serve to increase the penalty without, however,
exceeding the maximum of the penalty provided by law for the offense.
 GENERIC (kind of aggravating circumstances) - those that can generally apply
to all crimes
 SPECIFIC (kind of aggravating circumstances) - those that apply only to
particular crime.
 QUALIFYING (kind of aggravating circumstances) - those that change the
nature of the crime.
36.
 INHERENT (kind of aggravating circumstances) - those that must of necessity
accompany the commission of the crime.
 ALTERNATIVE CIRCUMSTANCES- aggravating or mitigating according to the
nature and effect of the crime and other conditions attending its commission.
 INSTIGATION- public officer or private detective induces an innocent person to
commit a crime and would arrest him upon or after the commission of the crime
by him.
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 ENTRAPMENT- a person has planned or is about to commit crime and ways and
means are resorted to by a public officer to trap and catch the criminal; not a
defense.
 ACCIDENT- any happening beyond control of persons, consequences of which
are not foreseeable.
 TREACHERY- when the offender commits any of the crime against the person ,
employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make
 IGNOMINY- moral suffering
 CRUELTY- deliberate intention to prolong physical suffering of the victim.
 HABITUAL DELINQUENCY- within 10 years from last release or last conviction
of the crime of falsification, robbery, estafa, theft, serious or less serious
physical injuries, the offender is found guilty of any of said crimes a third time
or oftener.
 RECIDIVISM- when the time of trial for one crime, shall have been previously
convicted by final judgment of another crime embraced in the same title of the
revised penal code.
 QUASI-RECIDIVISM- commits a felony after having been convicted by final
judgment, before beginning to serve such, or while serving the same, shall be
punished by maximum period of penalty prescribed by law for new felony.
 REITARACION or HABITUALITY- accused is on trial for an offense, he has
previously serves sentence for another offense to which the law attaches an
equal or greater penalty, or for two or more crimes to which it attaches lighter
penalty than that for the new offense and that he is convicted of the new
offense.
 OFFENSE- is an act or omission that is punishable by special laws such as
Republic Acts, Presidential Decrees, Executive Orders, Memorandum Circulars,
Ordinances and Rules and Regulations.
 PENALTY- penalty is the suffering that is inflicted by the State for the
transgression of a law.
 COMPLEX CRIMES- when a single act constitutes two or more grave or less,
grave felonies, or when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed.
 CONTINUED CRIME- a continued crime is a single crime, consisting of a series
of acts but all arising from one criminal resolution.
 ABERRATIO ICTUS- mistake in the blow
 ERROR IN PERSONAE-mistake in the identity of the victim
 PRAETER INTENTIONEM- the injurious result is greater than that intended.
 RESTITUTION-in theft, the culprit is duty bound to return the property stolen.
 REPARATION- in case of inability to return the property stolen, the culprit must
pay the value of the property stolen.
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 APPEAL- a request to a higher (appellate) court for that court to review and
change the decision of a lower court
 ASSAULT- a threat or use of force on another that causes that person to have a
reasonable apprehension of imminent harmful or offensive contact; the act of
putting another person in reasonable fear or apprehension of an immediate
battery by means of an act amounting to an attempt or threat to commit a
battery.
 ACQUITTAL- a jury verdict that a criminal defendant is not guilty or the finding
of a judge that the evidence is insufficient to support a conviction.
 BATTERY- the application of force to another, resulting in harmful or offensive
contac
 BRIBERY- The corrupt payment, receipt, or solicitation of a private favor for
official action.
 COUNTERFEITING- the forging, copying, or imitating of something (usually
money) without a right to do so and with the purpose of deceiving or
defrauding.
 TREASON- is a breach of allegiance to a government committed by a person
who owes allegiance to it
 ALLEGIANCE- is meant the obligation of fidelity and obedience which the
individuals owe to the government under which they live or to their sovereign,
in return for the protection they receive
 NEUTRALITY- a nation or power which takes no part in a contest of arms going
on between others is referred to as neutral.
 CORRESPONDENCE- is communication by means of letters, or it may refer to
the letters which pass between those who have friendly or business relations.
 DOCUMENT- is any written statement by which a right is established or an
obligation extinguished. A document is a writing or instrument by which a fact
may be proven and affirned
 PIRACY-it is robbery or forcible depredation on the high seas, without lawful
authority and done with animo furandi and in the spirit and intention of
universal hostility.
 MUTINY- it is the unlawful resistance to a superior officer, or the raising of
commotions and disturbances on board a ship against the authority of its
commander.
 PROBABLE CAUSE- probable cause can be defined as such facts and
circumstances which would lead a reasonable discreet and prudent man to
believe that an offense has been committed and that the object sought in
connection with the offense are in the place sought to searched.
 SEARCH WARRANT- is an order in writing issued in the name of the People of
the kenya signed by a judge and directed to a police officer, commanding him to
search for personal property described therein and bring it before the court.
72. MISPRISION OF TREASON- every person owing allegiance to the
government of the kenya, without being a foreigner, and having knowledge of
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any conspiracy against them, conceals or does not disclose and make known the
same, as soon as possible to the governor or fiscal of the province, or the mayor
or the fiscal of the city in which he resides.
 SEDITION- in its general sense, is the raising of commotions or disturbances in
the State.
 CHARIVARI-the term charivari includes a medley of discordant voices, a mock
serenade of discordant noises made on kettles, tins horns, etc.., designed to
annoy and insult.
 ESPIONAGE- Without authority therefor, enters a warship, fort, or naval or
military establishment or reservation to obtain any information, plans,
photographs, or other data of a confidential nature relative to the defense of
kenya; or (2) Being in possession, by reason of the public office he holds, of the
articles, data, or information referred to in the preceding paragraph, discloses
their contents to a representative of a foreign nation.
 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS. — The penalty of
reclusion temporal shall be imposed upon any public officer or employee, and
that of prision mayor upon any private individual, who, by unlawful or
unauthorized acts provokes or gives occasion for a war involving or liable to
involve the Philippine Islands or exposes Filipino citizens to reprisals on their
persons or property.
 VIOLATION OF NEUTRALITY — The penalty of prision correccional shall be
inflicted upon anyone who, on the occasion of a war in which the Government is
not involved, violates any regulation issued by competent authority for the
purpose of enforcing neutrality.
 FLIGHT TO ENEMY’S COUNTRY. — The penalty of arresto mayor shall be
inflicted upon any person who, owing allegiance to the Government, attempts to
flee or go to an enemy country when prohibited by competent authority.
 PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS — The penalty of
reclusion temporal shall be inflicted upon any person who, on the high seas,
shall attack or seize a vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers
 EXPULSION — The penalty of prision correccional shall be imposed upon any
public officer or employee who, not being thereunto authorized by law, shall
expel any person from the Philippine Islands or shall compel such person to
change his residence.
 VIOLATION OF DOMICILE. — The penalty of prision correccional in its
minimum period shall be imposed upon any public officer or employee who, not
being authorized by judicial order, shall enter any dwelling against the will of
the owner thereof, search papers or other effects found therein without the
previous consent of such owner, or having surreptitiously entered said dwelling,
and being required to leave the premises, shall refuse to do so.
16

 DWELLING- means any building or structure exclusively devoted for rest and
comfort as distinguished from places devoted to business, offices, etc..,
 INHABITED HOUSE- is any shelter, ship or vessel constituting the dwelling of
one or more persons even though the inhabitants thereof are temporarily.
 PUBLIC BUILDING-is every building owned by the government or belonging to
a private person but used or rented by the government, although temporarily
unoccupied by the same
 PREMISES- premises signifies distinct and definite locality. It may mean a
room, shop, building or definite area, but in either case, locality is fixed.
 GRAVE THREATS- any person who shall threaten another with the infliction
upon the person, honor, or property of the latter or of his family of any wrong
amounting to a crime.
 UNJUST VEXATION- unjust vexation includes any human conduct which,
although not productive of some physical or material harm would, however,
unjustly annoy or vex an innocent person.
 SEIZE- it means to place in the control of someone a thing or to give him the
possession thereof.
 ROBBERY- is the taking of personal property belonging to another, with intent
to gain, by means of violence against, or intimidation of any person, or using
force upon things.
 FALSE KEYS- are genuine keys stolen from the owner or any keys other than
those intended by the owner for use in the lock forcibly opened by the offender.
 BRIGANDAGE- is a crime committed by more than three armed persons who
form a band of robbers for the purpose of committing robbery in the highway or
kidnapping persons for the purpose of extortion or to obtain ransom, or for any
other purpose to be attained by means of force and violence.
 THEFT- theft is committed by any person who, with intent to gain but without
violence against or intimidation of persons nor force upon things, shall take
personal property of another without the latter’s consent.
 FENCING- is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of,
or shall buy and sell, or in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft
 ENCUMBRANCE- the term incumbrance includes every right or interest in the
land which exists in favour of third persons.
 MALICIOUS MISCHIEF- malicious mischief is the wilful damaging of another’s
property for the sake of causing damage due to hate, revenge or other evil
motive.
97. ADULTERY- adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband and by the man who has carnal
knowledge of her, knowing her to be married, even if the marriage be
subsequently declared void.
17

 LEWD- lewd is designed as obscene, lustful, indecent, and lecherous. It

signifies the form of immorality which has relation to moral impurity; or that
which is carried on a wanton manner.
 CONCUBINAGE- any husband who shall keep a mistress in the conjugal
dwelling, or, shall have sexual intercourse, under scandalous circumstances,
with a woman who is not his wife, or shall cohabit with her in any other place.
 COHABIT- the term cohabit means to dwell together, in the manner of husband
and wife, for some period of time, as distinguished from occasional, transient
interviews for unlawful intercourse.
 SEDUCTION- seduction means enticing a woman to unlawful sexual intercourse
by promise of marriage or other means of persuasion without use of force.
 ABDUCTION- is meant the taking away of a woman from her house or the
place where she may be for the purpose of carrying her to another place with
intent to marry or to corrupt her.
 BIGAMY- any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before the former
marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
proceedings.
 LIBEL- is a defamation committed by means of writing, printing, lithography,
radio, phonograph, painting or theatrical or cinematographic exhibition, or any
similar means.
 SLANDER- slander is oral defamation, it is libel committed by oral (spoken)
means, instead of in writing. The term oral defamation or slander as now
understood, has been defined as the speaking of base and defamatory words
which tend to prejudice another in his reputation, office, trade, business or
means of livelihood.
 MISFEASANCE- is the improper performance of some act which might lawfully
be done
 MALFEASANCE- is the performance of some act which ought not to be done.
 NONFEASANCE-is the omission of some act which ought to be performed.
 INFANTICIDE- the killing of any child less than three days of age, whether the
killer is the parent or grandparent, any other relative of the child, or a stranger.
 DUEL- it is a formal or regular combat previously concerted between two
parties in the presence of two or more seconds of lawful age on each side, who
make the selection of arms and fix all the other conditions of the fight.
 MUTILATION- means the lopping or the clipping off of some part of the body.
 DEFORMITY- is meant physical ugliness, permanent and definite abnormality.
It must be conspicuous ad visible.
 ARREST- A restraint on person, depriving one of his own will and liberty,
binding him to become obedient to the will of the law
 PROOF- It refers to the accumulation of evidence sufficient to persuade the
trial court.
18

 QUANTUM OF EVIDENCE– the totality of evidence presented for consideration

 QUANTUM OF PROOF – refers to the degree of proof required in order to
arrive at a conclusion.
 BURDEN OF EVIDENCE – the duty of a party of going forward with evidence.
 BURDEN OF PROOF – the duty of the affirmative to prove that which it alleges.
 COLLATER MATTERS – matters other than the fact in issue and which are
offered as a basis for inference as to the existence or non-existence of the facts
in issue.
 PROBATIVE VALUE – It is the tendency of the evidence to establish the
proposition that it is offered to prove.
 ANTECEDENT CIRCUMTANCES – facts existing before the commission of the
crime [i.e. hatred, bad moral character of the offender, previous plan,
conspiracy, etc.
 CONCOMITANT CIRCUMTANCES – facts existing during the commission of
the crime [i.e. opportunity, presence of the accused at the scene of the crime,
etc.
 SUBSEQUENT CIRCUMTANCES – facts existing after the commission of the
crime [i.e. flight, extrajudicial admission to third party, attempt to conceal
effects of the crime, possession of stolen property, etc.
 CONFESSION – an acknowledgement of guilt.
 ADMISSION – an acknowledgment of facts
 RELEVANT EVIDENCE – evidence having any value in reason as tending to
prove any matter provable in an action.
 MATERIAL EVIDENCE – evidence is material when it is directed to prove a fact
in issue as determined by the rules of substantive law and pleadings.
 COMPETENT EVIDENCE – not excluded by law.
 DIRECT EVIDENCE – proves the fact in issue without aid of inference or
presumptions.
 CIRCUMSTANTIAL EVIDENCE - the proof of fact or facts from which, taken
either singly or collectively, the existence of a particular fact in dispute may be
inferred as necessary or probable consequence.
 POSITIVE EVIDENCE– evidence which affirms a fact in issue
 NEGATIVE EVIDENCE- evidence which denies the existence of a fact in issue.
 REBUTTING EVIDENCE – given to repel, counter act or disprove facts given in
evidence by the other party.
 PRIMARY/BEST EVIDENCE – that which the law regards as affording the
greatest certainty.
 SECONDARY EVIDENCE – that which indicates the existence of a more original
source of information.
 EXPERT EVIDENCE – the testimony of one possessing knowledge not usually
acquired by other persons.
19

 PRIMA FACIE EVIDENCE – evidence which can stand alone to support a

conviction unless rebutted.
 CONCLUSIVE EVIDENCE – incontrovertible evidence
 CUMULATIVE EVIDENCE – additional evidence of the same kind bearing on
the same point.
 CORROBORATIVE EVIDENCE – additional evidence of a different kind and
character tending to prove the same point as that of previously offered
evidence.
 CHARACTER EVIDENCE – evidence of a person’s moral standing or personality
traits in a community based on reputation or opinion.
 DEMEANOR EVIDENCE – the behavior of a witness on the witness stand during
trial to be considered by the judge on the issue of credibility.
 DEMONSTRATIVE EVIDENCE – evidence that has tangible and exemplifying
purpose.
 HEARSAY EVIDENCE – oral testimony or documentary evidence which does not
derive its value solely from the credit to be attached to the witness himself.
 TESTIMONIAL EVIDENCE – oral averments given in open court by the
witness.
 OBJECT/AUOTOPTIC PROFERRENCE/REAL EVIDENCE – those addressed to
the senses of the court (sight, hearing, smell, touch, taste).
 DOCUMENTARY EVIDENCE – those consisting of writing or any material
containing letters, words, numbers, figures, symbols or other modes of written
expression offered as proof of its contents.
 BURDEN OF PROOF– the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence
required by law.
 PRESUMPTION – an inference as to the existence of a fact not actually known,
arising from its usual connection with another which is known or a conjecture
based on past experience as to what course human affairs ordinarily take.
 CONCLUSIVE PRESUMPTIONS [jure et de jure] – based on rules of substantive
law which cannot be overcome by evidence to the contrary.
 DISPUTABLE PRESUMPTIONS – based on procedural rules and may be
overcome by evidence to the contrary.
 ESTOPPEL BY RECORD OR JUDGEMENT – the preclusion to deny the truth of
matters set forth in a record, whether judicial or legislative, and also deny the
facts adjudicated by a court of competent jurisdiction
20

 ESTOPPEL BY DEED– a bar which precludes a party to a deed and his privies
from asserting as against the other and his privies any right or title in
derogation of the deed or denying the truth of any material fact asserted in it
 ESTOPPEL IN PAIS – based upon express representation or statements or upon
positive acts or conduct.
 ESTOPPEL AGAINST TENANT – the tenant is not permitted to deny the title of
his landlord at the time of the commencement of the relation of landlord and
tenant between them.
 DIRECT EXAMINATION– the examination in chief of a witness by the party
presenting him on the facts relevant to the issue.
 CROSS EXAMINATION – the examination by the adverse party of the witness as
to any matter stated in the direct examination, or connected therewith, with
sufficient fullness and freedom from interest or bias, or the reverse, and to elicit
all important facts bearing upon the issue.
 RE-DIRECT EXAMINATION – second questioning by the proponent to explain
or supplement answers given in the cross examination
 RE-CROSS EXAMINATION – second questioning by the adverse party on
matters stated on the re-direct and also on such matters as may be allowed by
court.
 LEADING QUESTION –It is one where the answer is already supplied by the
examiner into the mouth of the witness.
 MISLEADING QUESTION – a question which cannot be answered without
making an unintended admission.
 COMPOUND QUESTION –a question which calls for a single answer to more
than one question.
 ARGRUMENTATIVE QUESTION – a type of leading question which reflects the
examiners interpretation of the facts.
 SPECULATIVE QUESTION – a question which assumes a disputed fact not
stated by the witness as true.
 CONCLUSIONARY QUESTION – a question which asks for an opinion which the
witness is not qualified or permitted to answer.
 CUMULATIVE QUESTION – a question which has already been asked and
answered.
 CRIMINAL PROCEDURE - It is a generic term used to describe the network of
laws and rules which govern the procedural administration of criminal justice.
 CRIMINAL JURISPRUDENCE - The authority to hear and decide a particular
offense and impose punishment for it.
21

 SUBJECT MATTER – cases of the general class where the proceedings in

question belong as determined by the nature of the offense and the penalty
imposed by law.
 TERRITORY – the geographical limits of the territory over which the court
presides and where the offense was committed.
 PRELIMINARY INVESTIGATION – It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and
should be held for trial.
 ARREST- The taking of a person in custody in order that he may be bound to
answer for the commission of an offense.
 HOT PURSUIT ARREST – when an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person arrested has committed it.
 BAIL - The security given for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court
as required under the conditions of law.
 ARRAIGNMENT - The initial step in a criminal prosecution whereby the
defendant is brought before the court to hear the charges and to enter a plea.
 EVIDENCE - sanctioned by the rules, for ascertainment in a judicial proceeding,
the truth, respecting a matter of fact.
 COMPLAINT – A complaint is a sworn written statement charging a person with
an offense
 INFORMATION – is an accusation in writing charging a person with an offense.
 THE MIXED SYSTEM – the so-called mixed system is a good combination of the
good features and characteristic of the inquisitorial and the accusatorial
system.
 THE ACCUSATORIAL – under this system of procedure, prosecution of crimes
is conducted either at the initiative of the public prosecutor or of the offended
party himself.
 THE INQUISITORIAL SYSTEM – this system in criminal procedure is
characterized by secrecy of investigation, the employment of torture and
violence to obtain confession from the accused, the denial of right of
confrontation and of the right of counsel, and of appeal in all cases.
 JURISDICTION - as the authority to hear and determine a cause.
 VENUE - is a geographical division in which an action is brought to trial.
184. JOHN DOE WARRANT - It is one issued to person whom the witnesses
cannot identify
22

 PROPERTY BOND - is an undertaking constituted as a lien on the real property

given as security for the amount of the bail
 FACTUM PROBANDUM - is the ultimate fact sought to be established.
 FACTUM PROBANS - is the evidentiary fact by which the ultimate fact is to be
established.
 REBUTTAL EVIDENCE - is that which is given to explain, repel, counteract or
disprove facts given in evidence by the adverse party.
 SUR REBUTTAL - is that which is given to repel, counteract or disprove facts
given in rebuttal evidence.
 IRRELEVANT EVIDENCE - is that which has no tendency in reason to establish
the probability or improbability of a fact issue.
 INCOMPETENT EVIDENCE - is one who excluded by law either on grounds of
its immateriality, irrelevancy, and want of credibility or for any other reason.
 INADMISSABLE EVIDENCE - is that which is irrelevant to the issue or which is
excluded by the rules of evidence.
 IMMATERIAL EVIDENCE - is that which is not directed to prove a fact in issue
as determined by the rules of substantive law and of pleadings
 JUDICIAL NOTICE - means no more than that the court will bring to its aid and
consider, without proof of the facts its knowledge of those matters of public
concern which are known by all well informed persons.
 EXTRA JUDICIAL ADMISSION - are those made out of the court or in judicial
proceeding other than the one under consideration.
 DYING DECLARATION. - The declaration of a dying person, made under the
consciousness of an impending death,
 PART OF THE RES GESTAE. – Statements made by a person while a startling
occurrence is taking place or immediately prior to or subsequent thereto with
respect to the circumstances thereof
 PREJUDICIAL QUESTION - It is a question, which arises in a case the
resolution of which is a logical antecedent of the issue or issues involved in said
cases, and the cognizance of which pertains to another tribunal.
 ERROR OF JUDGEMENT - An error of judgment is one, which the court may
commit in the exercise of its jurisdiction.
 ERROR OF JURISDICTION - An error of jurisdiction renders an order or
judgment void or void able
23

DUE DILIGENCE
Due diligence also called reasonable care which requires An individual to "take
all reasonable steps" or "all reasonable care" to avoid the harm to anybody or
violating the law
Due diligence defence is also available where the accused "had an honest but
mistaken belief in facts which, if true, would render the act innocent"
In other words Due diligence is the investigation or exercise of care that a
reasonable person is expected to take before doing anything. The term “due
diligence” means "required carefulness" or "reasonable care" in general usage, and
has been used in this sense since at least the mid-fifteenth century.
In criminal law, due diligence is the only available defense to a crime that is one
of strict liability (i.e., a crime that only requires an actus reus and no mens rea).
Once the criminal offence is proven, the defendant must prove on balance that they
did everything possible to prevent the act from happening.
Due diligence is also used in criminal law to describe the scope of the duty of a
prosecutor, to take efforts to turn over potentially exculpatory evidence (likely to
prove somebody innocence), to (accused) criminal defendants.
In criminal law, “due diligence” also identifies the standard a prosecuting entity
must satisfy in pursuing an action against a defendant, especially with regard to
State Constitutional and statutory right to a speedy trial or to have a warrant or
detainer served in an action. In cases where a defendant is in any type of custodial
situation where their freedom is constrained, it is solely the prosecuting entities
duty to ensure the provision of such rights and present the citizen before the court
with jurisdiction. This also applies where the respective judicial system and/or
prosecuting entity has current address or contact information on the named party
and said party has made no attempt to evade notice of the prosecution of the
action. Due diligence must respect Human rights of individuals
Due diligence takes different forms depending on its purpose:
1. A reasonable investigation focusing on material future matters.
2. An examination being achieved by asking certain key questions, including,
how do we go about it, how do we structure interogation and question, and
how much information do we need?
3. An investigation of current practices of process and policies.
24

4. An examination aiming to make decision via the principles of valuation and

analysis.
The due diligence process (framework) can be divided into nine distinct areas:
1. Compatibility audit.
2. Financial audit.
3. Macro-environment audit.
4. Legal/environmental audit.
5. Marketing audit
6. Production audit.
7. Management audit.
8. Information systems audit
9. Reconciliation audit.
STRICT LIABILITY
All offences of strict liability do not require the state to prove any mens rea,
there only needs to be an actus reus proven. For any of these offences, it is
open to the accused either to raise a defence of due diligence by establishing
that reasonable care was taken or by raising a defence of mistake of fact.
Once the state proves the elements of "strict liability" offence or otherwise
establishes a duty upon the accused, the onus is on the accused to establish
due diligence. This must be proven on a balance of probabilities. The conduct of
the accused is measured against that of "a reasonable person in similar
circumstances".[3]

FORENSIC PSYCHOLOGIST PROFESSION

CONSULTANT to law enforcement
Forensic psychologists also assist with law enforcement in collaboration with the police force or
other law enforcement agencies. Law enforcement psychologists are responsible for assisting law
enforcement personnel. They are frequently trained to help with crisis intervention, including post-
trauma and suicide. Other duties of law enforcement psychologists include development of police
training programs, stress management, personnel management, and referral of departmental
personnel as well as their families for specialized treatment and counseling.
CORRECTIONAL psychologist
Correctional psychologists work with inmates and offenders in correctional settings. They serve
both the role of an evaluator and a treatment provider to those who have been imprisoned or on
parole or probation.
EVALUATOR
25

These forensic psychologists take on the role of evaluating parties in criminal or civil cases on
mental health issues related to their case. For criminal cases, they may be called on to evaluate
issues including, but not limited to, defendants' competence to stand trial, their mental state at the
time of the offense (insanity), and their risk for future violent acts.
EXPERT WITNESS
Unlike fact witnesses, who are limited to testifying about what they know or have observed, expert
witnesses have the ability to express opinion because, as their name suggests, they are presumed to
be "experts" in a certain topic. They possess specialized knowledge about the topic. Expert
witnesses are called upon to testify on matters of mental health (clinical expertise) or other areas of
expertise such as social, experimental, cognitive, or developmental. The role of being an expert
witness is not primary and it is usually performed in conjunction with another role such as that of
researcher, academic, evaluator, or clinical psychologist. Clinical forensic psychologists evaluate a
defendant and are then called upon as expert witnesses to testify on the mental state of the
defendant
TREATMENT PROVIDER
Treatment providers are forensic psychologists who administer psychological intervention or
treatment to individuals in both criminal and civil cases who require or request these services. In
criminal proceedings, treatment providers may be asked to provide psychological interventions to
individuals who require treatment for the restoration of competency, after having been determined
by the courts as incompetent to stand trial. They may be asked to provide treatment for the mental
illness of those deemed insane at the crime. They may also be called to administer treatment to
minimize the likelihood of future acts of violence for individuals who are at a high risk of
committing a violent offense. As for civil proceedings, treatment providers may have to treat
families going through divorce and/or custody cases.
TRIAL CONSULTANT
Forensic psychologists often are involved in trial consulting and are part of legal psychology. A trial
consultant, a jury consultant, or a litigation consultant, are social scientists who work with legal
professionals such as trial attorneys to aid in case preparation, which includes selection of jury,
development of case strategy, and witness preparation.

FORENSIC PSYCHOLOGY
Forensic psychology is about discovering Criminal Minds intention using scientific approach to
understand reason for committing a crime, motivation and operation mode.
Forensic describes scientific methods used to investigate crimes. If you are looking
for forensic evidence, you are using scientific know-how to find proof that will help solve crimes.
Forensic comes from the Latin word forensis, meaning “in open court” or “public.” When you
describe something as forensic you usually mean that is has to do with finding evidence to solve a
crime. It could also mean that it has to do with the courts or legal system. You could have a forensic
advantage — meaning an advantage in court — if the forensic team — meaning the investigators —
found no forensic evidence of you being involved.
26

It is using scientific methods to establish the mens rea and act us rea of the criminal mind so that
the offender is tied to the crime through clinical and psychological methods. Involves even finding
the kind of weapon sued in the commission of the crime
It profiles the criminal thinking to the extent of finding out criminal had the psychic ability by
evaluating the personality and behavioral descriptions of perpetrators. It endeavors to tell what
the criminal was thinking before and during the crime, the planning and the execution style.
The investigators apply clinical knowledge and psychological assessment of individuals who are
involved, in one way or another, with the alleged offend.
The investigator applies clinical skills such as assessment, treatment, and evaluation in physical of
the scene, cognitive psychology, and social psychology to the crime arena.
The practice of forensic psychology involves investigations, research studies, assessments,
consultation, the design and implementation of treatment programs and expert witness courtroom
testimony.
DEFINITION OF TERMINOLOGIES
FORENSIC PSYCHOLOGY is about understanding the scientific aspect of evidence as given by
expert witness testimony and the specific content area of concern among the competence to stand
trial, child custody and visitation, or workplace among insanity.
FORENSIC SCIENCE, also known as criminalistics, is the application of science to criminal and civil
laws, mainly—on the criminal side—during criminal investigation, as governed admissible
evidence and criminal procedure. It is the application of scientific methods and techniques to
matters under investigation by a court of law
SCIENCE is a systematic innovativeness that builds and organizes knowledge in the form
of testable explanations and predictions about the universe.
FORENSIC use of scientific methods of solving crimes, involving examining objects or substances
that are involved in crime,

CHARACTERISTICS OF FORENSIC PSYCHOLOGISTS

Students considering this field should think beyond grades and test-taking to the arena of
temperament. The successful forensic psychologist takes to police stations, courtrooms and
corrections facilities like a duck to water. As professionals who work with those in the throes of the
criminal and civil judicial systems, forensic psychologists should possess certain innate or
distinctive qualities. They include
 Work Ethic
A forensic psychologist finds employment diverse settings, from courts and legislative committees
to administrative agencies and insurance companies. Forensic psychologists regularly deliver oral
27

and written reports on witnesses, defendants, claimants and police officers, to name a few subjects.
These evaluations range from flight risk assessments to analyses of the potential for violence from
appraisals of truthfulness to recommendations for appropriate sentencing. Such questions require
extensive research and meticulous understanding. This is not the work for sluggards, which is why
work ethic is the first of characteristics of forensic psychologists.
 Attention to Detail
Psychologists are trained to notice subtleties/ intricacies. Minor gestures, vocal inflections and
patterns of conversation give clues about a client’s state of mind. It is crucial that the professional
therapist, for example, apprehend a client’s cadence in speech in order to measure reactions.
Attention to detail is critical.
 Penchant for Organization
Forensic psychologist is under pressure to produce all kinds of information. This virtue can be
blunted if the psychologist is not organized. In short, this means planning the work and working the
plan. As with anything forensic, emergencies can arise from seemingly out of nowhere. Yet this
makes thorough planning and execution of the routine work all the more important. How much
time does a child’s interview take in custody case and how long to synthesize the related interviews
into one report for the family court judge? Optimizing time is central to the work of a forensic
psychologist.
 Stoic Approach(enduring/patient)
The issues engaged by a forensic psychologist are frequently emotional ones. Capital cases often
involve grisly narratives of rape and murder. Even civil cases present questions of justice that may
bankrupt one party while enriching another. The psychologist is retained to render the most
dispassionate and objective analysis, rooted in science and devoid of emotion. Those who possess
the characteristics of forensic psychologist practice a stoic approach to their work, putting personal
feelings aside when gathering and presenting their findings.
 Critical Thinking
If keen observation is one of the five characteristics of forensic psychologists, it stands to reason
that critical thinking must follow. Interpreting the behavior of a convicted felon appealing a
sentence is more than just noticing it. Placing it, then, in proper context helps the psychologist to
analyze the behavior and explain it to the proper authorities. Drawing inferences and
understanding one’s own limitations are also key to this skill set.

TYPES OF FORENSIC EXPERTS

Forensic is applied to solving crimes or to the court system. There are types of forensic experts
including.
 Forensic Science Technicians
Technicians are the utility players of the forensic science field. They assist in the collection of
evidence, conduct analysis, and help investigate crime scenes. Often called crime scene technicians
or crime scene investigators, forensic science technicians conduct most of their work either on the
scene or in a laboratory. Specially trained in evidence collection, technicians must have an eye for
28

detail. They might also provide assistance to other forensic scientists and serve as liaisons to other
specialists.
 Bloodstain Pattern Analysts
Often referred to as blood spatter experts, bloodstain pattern analysts are forensic science
technicians who specialize in violent crime scenes. They can help determine the type of weapon
used, whether a struggle occurred, the direction of travel of a victim or suspect, who was the
primary aggressor, and whether wounds were self-inflicted—all through the examination of drips,
spills, spatters, and stains.
 Forensic Ballistics Expert
Detectives call on forensic ballistics experts when they need help tracing a bullet back to a gun or
identifying the type of firearm used. These experts provide crucial analysis at complex scenes,
helping investigators identify the trajectory of fired rounds to find a point of origin. Forensic
ballistics experts can identify what type of bullet was used, its caliber, and even where it was
manufactured. They can analyze whether a gun was recently fired and whether a particular bullet
was fired by a specific gun.
 Forensic DNA Analyst
Deoxyribonucleic acid analysis (DNA0 contains the genetic coding that makes us. It's believed to
provide an as-close-to-perfect identification as possible as, far more accurate as fingerprinting.
DNA analysts compare DNA samples taken from suspects and victims to determine whether
someone was present at a crime scene, whether they were involved in a violent encounter and
other questions of identity when a sample is available. DNA analysts can also compare unknown
samples to databases to identify potential suspects.
 Polygraph Examiner.
Polygraph examiners are trained to conduct examinations using the "lie detector" and to provide
analysis of the results. Polygraph examiners undergo lengthy training to hone their skills, and
they're often used in internal administrative investigations of law enforcement personnel.
Polygraph examiners might work for criminal justice agencies or as private contractors. Their
services are quite often employed during the candidate screening process for many sensitive jobs. '
 Forensic Documents Examiner
Forensic documents examiners compare handwriting samples and use their expertise to identify
forgeries of contracts, checks, bank statements, and other documents and electronic records. They
can also determine the validity of a signature through handwriting analysis and even determine the
relative age of a document.

 Digital Forensics Experts and Forensic Computer Investigators

Digital and computer forensics is becoming an extremely important field, and these experts are
much in demand. Criminals are leaving more clues and electronic fingerprints as we all use
computers and digital devices more and more. Cybercrime is a growing problem, as well as child
exploitation and other similar types of criminal behavior that have found a home online.
 Forensic Toxicologist
29

Forensic toxicologists help investigators identify the causes of death that include poisons,
chemicals, and intoxicating substances. They assist in the prosecution of DUI and DWI arrests and
can detect the presence of drugs or alcohol in a suspect or victim's blood.
 Forensic Accountant
Forensic accountants specialize in financial crimes and are trained to follow the money trail.
They work to weed out fraud and to help protect bank accounts. Forensic accountants also assist
courts in assessing awards and damages and to identify and investigate financiers of terrorism.
 Forensic Engineer
Forensic engineers work with machinery and structures. When a bridge collapses for no apparent
reason, forensic engineers determine how it happened and why. They can pinpoint foul play and
differentiate it from structural failure due to age and lack of maintenance.
 Forensic Anthropologist
Anthropologists can determine the age, sex, and weight of a victim by studying decomposed
physical remains and skeletal systems, as well as the types of injuries the victim received and the
potential cause of death in many cases. Forensic anthropologists often work at colleges and
universities and provide assistance to law enforcement entities on an as-needed, contractual basis.
 Forensic Odontologist
Forensic odontologists use unique dental features to identify human remains when particularly
gruesome crimes occur or after mass casualty events. They can also analyze bite marks and
compare them to samples to help identify victims and suspects, as well as help investigators,
determine whether injuries are defensive or offensive.
 Forensic Psychologist
Forensic psychologists provide psychological services and analysis for nearly every facet of the
criminal justice system. They perform important services to corrections, courts, and law
enforcement, from jury consulting to prison counseling. The job also involves investigating
allegations of child abuse, and they evaluate victims, witnesses, and suspects for veracity and
competency. This helps judges determine whether a suspect can stand trial.
 Forensic Pathologist
Forensic pathologists provide one of the most important components of any homicide
investigation: They determine the cause of death. Also known as medical examiners, forensic
pathologists employ their medical training to identify which, if any, injuries were fatal. They can
also help investigators learn the type of weapon used and determine an approximate time of death.
 Arson Investigators
An arson investigator uses residue, ash, and other substances left after a fire to pinpoint whether
such an event was intentional arson or the result of an accident. They might be called on scene to
analyze the behavior and characteristics of fires while they're still in progress. An arson
investigator's science is flames.

Heuristic
Heuristic technique is decision making art that employs a practical method not perfect,
but sufficient for reaching an immediate goal.
30

Heuristic methods are used to speed up the process of finding a satisfactory solution. In
fact Heuristics can be mental shortcuts that ease the cognitive load of making a decision. It
is simple, efficient rules to explain how people make decisions, come to judgments, and
solve problems typically when facing complex problems or incomplete information.
Examples that employ heuristics include using a rule of thumb, an educated guess, an
intuitive judgment, stereotyping, profiling, or common sense. Heuristics are strategy or
plan derived from previous experiences with similar problems. The most fundamental
heuristic is TRIAL AND ERROR, which can be used in everything from matching nuts and
bolts to finding the values of variables in algebra problems. Here are a few other commonly
used heuristics.
 If you are having difficulty understanding a problem, try drawing a picture.
 If you can't find a solution, try assuming that you have a solution and seeing what
you can derive from that ("working backward").
 If the problem is abstract, try examining a concrete example.

 Try solving a more general problem first (the "inventor's paradox": the more
ambitious plan may have more chances of success).
There are several ways that humans form and use cognitive maps. Visual intake is a key
part of mapping.
 The first is by using landmarks. This is where a person uses a mental image to
estimate a relationship, usually distance, between two objects.
 Second, is route-road knowledge, and this is generally developed after a person has
performed a task and is relaying the information of that task to another person.
 Third, is survey. A person estimates a distance based on a mental image that, to
them, might appear like an actual map.

MISCARRIAGE OF JUSTICE
A miscarriage of justice is the conviction and punishment of a person for a crime they did not
commit.. Most criminal justice systems have some means to overturn, or "quash", a wrongful
conviction, but this is often difficult to achieve. In some instances a wrongful conviction is not
31

overturned for several decades, or until after the innocent person has been executed, released
from custody, or has died.
"Miscarriage of justice" is sometimes synonymous with wrongful conviction, referring to a
conviction reached in an unfair or disputed trial. Wrongful convictions are frequently cited by
death penalty opponents as cause to eliminate death penalties to avoid executing innocent
persons. In recent years, DNA evidence has been used to clear many people falsely convicted.
CAUSES OF MISCARRIAGES OF JUSTICE INCLUDE:
 Plea bargains that offer incentives for the innocent to plead guilty, sometimes called an
innocent prisoner's dilemma
 Confirmation bias on the part of investigators

 Withholding or destruction of evidence by police or prosecution

 Fabrication of evidence or outright perjury by police or prosecution witnesses

 Biased editing of evidence

 Prejudice against the class of people to which the defendant belongs

 Misidentification of the perpetrator by witnesses and/or victims

 Overestimation/underestimation of the evidential value of expert testimony

 Contaminated evidence

 Faulty forensic tests

 False confessions due to police pressure or psychological weakness

 Misdirection of a jury by a judge during trial

 Perjured evidence by the real guilty party or their accomplices (frameup)

 Perjured evidence by the alleged victim or their accomplices

32

 Conspiracy between court of appeal judges and prosecutors to uphold conviction of the
innocent
A risk of miscarriages of justice is one of the main arguments against the death penalty. Where
condemned persons are executed promptly after conviction, the most significant effect of a
miscarriage of justice is irreversible. Wrongly executed people nevertheless occasionally receive
posthumous pardons—which essentially void the conviction—or have their convictions
quashed. Many death penalty states hold condemned persons for ten or more years before
execution, so that any new evidence that might acquit them (or, at least, provide reasonable
doubt) will have had time to surface. Even when a wrongly convicted person is not executed,
years in prison can have a substantial, irreversible effect on the person and their family.
Modus operandi
A modus operandi (M.O.) It is a Latin phrase, approximately translated as method or mode of
operating. The term is often used in police work when discussing crime and addressing the
methods employed by criminals. It is also used in criminal profiling, where it can help in finding
clues to the offender's psychology. It largely consists of examining the actions used by the
individuals to execute the crime, prevent its detection and facilitate escape. A suspect's modus
operandi can assist in their identification, apprehension, or repression, and can also be used to
determine links between crimes.
Mens rea
Mens rea is person's intention to commit a crime; or knowledge that one's action or lack of
action would cause a crime to be committed. It is a necessary element of many crimes. The
doctrine is based on "the act is not culpable unless the mind is guilty". In jurisdictions with due
process, there must be both actus reus ("guilty act") and mens rea for a defendant to be guilty
of a crime As a general rule, someone who acted without mental fault is not liable in criminal
law.
Levels of mens rea
The definition of a crime is thus constructed using only these elements rather than the colorful
language of mens rea: Murder is the unlawful killing of a human being with malice
aforethought. In the traditional common law approach, the definition includes:
33

1. actus reus: unlawful killing of a human being;

2. mens rea: malice aforethought.

3. Thus, the actus reus and mens rea of homicide in a modern criminal statute can be
considered as follows:
1. actus reus: any conduct resulting in the death of another individual;
2. mens rea: intent or knowledge that the conduct would result in the death.
In the modern approach, the attendant circumstances tend to replace the traditional mens rea,
indicating the level of culpability as well as other circumstances. For example, the crime of theft
of government property would include as an attendant circum
Obiter dictum
Obiter dictum (usually used in the plural, obiter dicta) is Latin phrase meaning "by the way that
is, a remark in a judgment that is "said in passing". A judicial statement can be ratio decidendi
only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which
refer to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta are remarks
or observations made by a judge that, although included in the body of the court's opinion, do
not form a necessary part of the court's decision. In a court opinion, obiter dicta include, but
are not limited to, words "introduced by way of illustration, or analogy or argument".
Unlike ratio decidendi, obiter dicta are not the subject of the judicial decision, even if they
happen to be correct statements of law.
In reaching decisions, courts sometimes quote passages of obiter dicta found in the texts of the
opinions from prior cases, with or without acknowledging the quoted passage's status as obiter
dicta.

NOLLE PROSEQUI
Nolle prosequi, Latin for "we shall no longer prosecute," which is a declaration made to
the judge by a prosecutor in a criminal case (or by a plaintiff in a civil lawsuit) either before
or during trial, meaning the case against the defendant is being dropped.
34

Nolle prosequi as a declaration can be made by a prosecutor in a criminal case either

before or during trial, resulting in the prosecutor declining to further pursue the case
against the defendant. Courts seldom challenge applications for nolle prosequi.
The declaration may be made because the charges cannot be proved because vital
witnesses have become unavailable or uncooperative, the evidence is too weak to carry the
burden of proof, the evidence is fatally flawed in light of the claims that are broughtthe
prosecutor becomes doubtful that the accused is guilty, the defendant's innocence is
proved, or the defendant has died.
The entry of a nolle prosequi is not an acquittal. Since the principle of double
jeopardy therefore does not apply, the defendant may later be indicted on the same charge
again. Nolle prosequi is similar to a declination of prosecution, which is an agreement not
to prosecute made before any charges are brought or suit has been filed. A declination of
prosecution may be made by an attorney or may be made as an agreement between the
aggrieved party and the claimant.
A prosecutor might nol pross or dismiss charges for a variety of reasons, including:

 reevaluation of evidence
 emergence of new evidence

 failure of witnesses to cooperate, or

 desire to give the defendant a second chance.

Example: Xavier is arrested for assault with a firearm. Officers take statements from two
witnesses who say they saw him fire a gun at someone walking down the street. After
reading the police reports, the local prosecutor decides to press charges. Weeks later,
officers find the weapon underneath a garbage dumpster near the place of the shooting.
Forensic testing reveals the fingerprints of someone other than Xavier on the weapon. The
prosecution enters nolle prosequi
Effect of Dismissal
The normal effect of nolle prosequi is to leave matters as if charges had never been filed.
It’s not an acquittal, which (through the principle of double jeopardy) prevents further
proceedings against the defendant for the conduct in question. Rather, at least when it
occurs before trial, nolle prosequi typically leaves the decision of whether to re-prosecute
in the hands of the state. If the prosecution decides to bring charges again—for example,
after it’s gathered more evidence—it must file a new charging document.
However, dismissals are sometimes "with prejudice." A dismissal with prejudice means the
prosecution can’t ever re-file charges; a dismissal without it means the opposite.
35

MITIGATING FACTOR
In criminal law, a mitigating factor, also known as extenuating circumstances, is any information
or evidence presented to the court regarding the defendant or the circumstances of the crime that
might result in reduced charges or a lesser sentence. Unlike a legal defense, it cannot lead to the
acquittal of the defendant. The opposite of a mitigating factor is an aggravating factor. In sentencing
the following as possible mitigating factors
 Admitting the offense, such as through a guilty plea
 Mental illness

 Provocation

 Young age

 Showing remorse

Self-defense is a legal defense rather than a mitigating factor, as an act done in justified self-defense
is not deemed to be a crime. If the offender was provoked but cannot be considered to have acted in
self-defense, then the provocation can be used as a mitigating factor but not as a legal defense. The
jury has no power to determine the punishment to be awarded for an offense. The sentence, with
certain exceptions in capital cases, is within the sole discretion of the judge, subject to the statutory
prescriptions as to the kind and maximum of punishment. It is common practice for juries to add to
their verdict, guilty or not guilty, a rider recommending the accused to mercy on the ground of
grave provocation received, or other circumstances which in their view should mitigate the penalty.

OPINIONS WITHIN JUDGMENTS

If more than one judge is deciding a case, the judgment may be delivered unanimously or it
may be divided into a number of majority, concurring, plurality, and dissenting opinions.
Only the opinion of the majority judgment is considered to have precedent-setting weight.
Some examples of opinions within judgments include:
 Majority opinion: the opinion of more than half of the judges deciding a case. This
opinion becomes precedent for future cases as it represents the views of the majority of
the court.
36

 Concurring opinion: the opinion of a single judge or judges that agrees with the final
outcome of the majority opinion but disagrees in whole or in part with the reasoning.
 Plurality opinion: the opinions of different judges of the court when a majority
judgment is not obtained. An example of a plurality opinion is a court of three judges
each rendering a different concurring decision, agreeing on a final outcome but
disagreeing on the reasons justifying that final outcome.
 Dissenting opinion: the opinion of a single judge or judges that rejects the conclusions
of the majority decision in whole or in part, and explains the reasons for rejecting the
majority decision.
Ratio decidendi or precedent
Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or
"the rationale for the decision". The ratio decidendi is "the point in a case that determines
the judgement" or "the principle that the case establishes". In other words, ratio decidendi
is a legal rule derived from, and consistent with, those parts of legal reasoning within a
judgment on which the outcome of the case depends. It is a legal phrase which refers to the
legal, moral, political and social principles used by a court to compose the rationale of a
particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on
courts of lower and later jurisdiction.

The process of determining the ratio decidendi is a correctly thought analysis of what the
court actually decided—essentially, based on the legal points about which the parties in the
case actually fought. All other statements about the law in the text of a court opinion—all
pronouncements that do not form a part of the court's rulings on the issues actually
decided in that particular case (whether they are correct statements of law or not)—are
obiter dicta, and are not rules for which that particular case stands.

The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper
understanding of the ratio of a precedent, the advocate can in effect force a lower court to
come to a decision which that court may otherwise be unwilling to make, considering the
facts of the case. Ratio decidendi also involves the holding of a particular case, thereby
allowing future cases to build upon such cases by citing precedent. However, not all
37

holdings are given equal merit; factors that can strengthen or weaken the strength of the
holding include:

Amicus curiae
An amicus curiae (literally, "friend of the court"; plural, amici curiae) is someone who is
not a party to a case and may or may not have been solicited by a party, who assists a court
by offering information, expertise, or insight that has a bearing on the issues in the case,
and is typically presented in the form of a brief. The decision on whether to consider an
amicus brief lies within the discretion of the court.

REASONING AND DECISION MAKING IN COURT ROOM

Reason is the capacity for consciously making sense of things, establishing and verifying
facts, applying logic, and changing or justifying practices, institutions, and beliefs based on
new or existing information. Reason, or an aspect of it, is sometimes referred to as
rationality.
Reasoning refers to the process of making sense of things around us. In order to
understand our experiences, draw conclusions from information, and present new ideas,
we must use reasoning. We often reason without being aware of it, but becoming more
aware of how we think can empower us to be better producers and consumers of
communicative messages. The three types of reasoning we will explore are inductive,
deductive, and causal.
Reasoning is associated with thinking, cognition, and intellect. The philosophical field of
logic studies ways in which humans reason formally through argument.
Reasoning may be subdivided into forms of logical reasoning (forms associated with the
strict sense): deductive reasoning, inductive reasoning, abductive reasoning; and other
modes of reasoning considered more informal, such as intuitive reasoning and verbal
reasoning.
38

Reasoning, like habit or intuition, is one of the ways by which thinking moves from one idea
to a related idea. For example, reasoning is the means by which rational individuals
understand sensory information from their environments, or conceptualize abstract
dichotomies such as cause and effect, truth and falsehood, or ideas regarding notions of
good or bad. Reasoning, as a part of executive decision making, is also closely identified
with the ability to self-consciously change, in terms of goals, beliefs, attitudes, traditions,
and institutions, and therefore with the capacity for freedom and self-determination.
In contrast to the use of "reason" as an abstract noun, a reason is a consideration given
which either explains or justifies events, phenomena, or behavior. Reasons justify
decisions, reasons support explanations of natural phenomena; reasons can be given to
explain the actions (conduct) of individuals.
Using reason, or reasoning, can also be described more plainly as providing good, or the
best, reasons. For example, when evaluating a moral decision, "morality is, at the very least,
the effort to guide one's conduct by reason--that is, doing what there are the best reasons
for doing--while giving equal [and impartial] weight to the interests of all those affected by
what one does."
PSYCHOLOGY OF REASONING
The psychology of reasoning is the study of how people reason, often broadly defined as
the process of drawing conclusions to inform how people solve problems and make
decisions.
Psychological experiments on how humans and other animals reason have been carried out
for over 100 years. An enduring question is whether or not people have the capacity to be
rational. What does it mean to be rational? Current research in this area addresses various
questions about reasoning, rationality, judgments, intelligence, relationships between
emotion and reasoning, and development.
ELEMENTS OF REASONING
 CONSCIOUSNESS
Consciousness is the state or quality of awareness, or, of being aware of an external object
or something within oneself. It has been defined variously in terms of, awareness,
subjectivity, the ability to experience or to feel, wakefulness, having a sense of selfhood or
39

soul, the fact that there is something "that it is like" to "have" or "be" it, and the executive
control system of the mindIn contemporary philosophy its definition is often hinted at via
the logical possibility of its absence, the philosophical zombie, which is defined as a being
whose behavior and function are identical to one's own yet there is "no-one in there"
experiencing it.
 COGNITION
Cognition is "the mental action or process of acquiring knowledge and understanding
through thought, experience, and the senses". It encompasses processes such as attention,
the formation of knowledge, memory and working memory, judgment and evaluation,
reasoning and "computation", problem solving and decision making, comprehension and
production of language. Cognitive processes use existing knowledge and generate new
knowledge. The processes are analyzed from different perspectives within different
contexts, notably in the fields of linguistics, anesthesia, neuroscience, psychiatry,
psychology, education, philosophy, anthropology, biology, systemics, logic, and computer
science.
 INTUITION
Intuition is the ability to acquire knowledge without proof, evidence, or conscious
reasoning, or without understanding how the knowledge was acquired. It refers to direct
access to unconscious knowledge, unconscious cognition, inner sensing, inner insight to
unconscious pattern-recognition and the ability to understand something instinctively,
without the need for conscious reasoning. and intuition IS factually related to instinct,
truth, belief and meaning

TYPES OF REASONING
Abductive reasoning
Abductive reasoning (also called abduction abductive inference or retroduction) is a
form of logical inference which starts with an observation or set of observations then seeks
to find the simplest and most likely explanation. Abductive reasoning, or argument to the
best explanation, is a form of inductive reasoning, since the conclusion in an abductive
40

argument does not follow with certainty from its premises and concerns something
unobserved.
Inductive reasoning
Induction is a form of inference producing propositions about unobserved objects or types,
either specifically or generally, based on previous observation. The conclusion of an
inductive argument follows with some degree of probability. A classic example of inductive
reasoning comes from the empiricist David Hume:
 Premise: The sun has risen in the east every morning up until now.
 Conclusion: The sun will also rise in the east tomorrow.
Inductive reasoning reaches conclusions through the citation of examples and is the most
frequently used form of logical reasoning.
Introductory speakers are initially attracted to inductive reasoning because it seems easy,
it can be difficult to employ well. Inductive reasoning, unlike deductive reasoning, doesn’t
result in true or false conclusions. Instead, since conclusions are generalized based on
observations or examples, conclusions are “more likely” or “less likely.” Despite the fact
that this type of reasoning isn’t definitive, it can still be valid and persuasive.
Reasoning by analogy is a type of inductive reasoning that argues that what is true in one
set of circumstances will be true in another. Reasoning by analogy has been criticized and
questioned by logicians, since two sets of circumstances are never exactly the same. While
this is true, our goal when using reasoning by analogy in persuasive speaking is not to
create absolutely certain conclusions but to cite cases and supporting evidence that can
influence an audience. For example, let’s say you are trying to persuade a university to
adopt an alcohol education program by citing the program’s success at other institutions.
Since two universities are never exactly the same, the argument can’t be airtight. To better
support this argument, you could first show that the program was actually successful using
various types of supporting material such as statistics from campus offices and testimony
from students and staff. Second, you could show how the cases relate by highlighting
similarities in the campus setting, culture, demographics, and previous mission. Since you
can’t argue that the schools are similar in all ways, choose to highlight significant
similarities. Also, it’s better to acknowledge significant limitations of the analogy and
41

provide additional supporting material to address them than it is to ignore or hide such
limitations.
Deductive Reasoning
Deductive reasoning derives specifics from what is already known. It was the preferred
form of reasoning used by ancient rhetoricians like Aristotle to make logical. A syllogism is
an example of deductive reasoning in which a conclusion is supported by major and minor
premises. The conclusion of a valid argument can be deduced from the major and minor
premises. A commonly used example of a syllogism is “All humans are mortal. Socrates is a
human. Socrates is mortal.” In this case, the conclusion, “Socrates is mortal,” is derived from
the major premise, “All humans are mortal,” and the minor premise, “Socrates is a human.”
Causal Reasoning
Causal reasoning argues to establish a relationship between a cause and an effect. When
speakers attempt to argue for a particular course of action based on potential positive or
negative consequences that may result, they are using causal reasoning. Such reasoning is
evident in the following example: Eating more local foods will boost the local economy and
make you healthier. The “if/then” relationship that is set up in causal reasoning can be
persuasive, but the reasoning isn’t always sound. Rather than establishing a true cause-
effect relationship, speakers more often set up a correlation, which means there is a
relationship between two things but there are other contextual influences.
Persuasive Reasoning and Fallacies
Persuasive speakers should be concerned with what strengthens and weakens an
argument. Earlier we discussed the process of building an argument with claims and
evidence and how warrants are the underlying justifications that connect the two. We also
discussed the importance of evaluating the strength of a warrant, because strong warrants
are usually more persuasive. Knowing different types of reasoning can help you put claims
and evidence together in persuasive ways and help you evaluate the quality of arguments
that you encounter. Further, being able to identify common fallacies of reasoning can help
you be a more critical consumer of persuasive messages.
Analogical reasoning
42

Analogical reasoning is reasoning from the particular to the particular. It is often used in
case-based reasoning, especially legal reasoning. An example follows:
 Premise 1: Socrates is human and mortal.
 Premise 2: Plato is human.
 Conclusion: Plato is mortal.

Fallacious reasoning
Flawed reasoning in arguments is known as fallacious reasoning. Bad reasoning within
arguments can be because it commits either a formal fallacy or an informal fallacy. Formal
fallacies occur when there is a problem with the form, or structure, of the argument. The
word "formal" refers to this link to the form of the argument. An argument that contains a
formal fallacy will always be invalid. An informal fallacy is an error in reasoning that occurs
due to a problem with the content, rather than mere structure, of the argument.

PLEA BARGAIN
The plea bargain also known as plea agreement or plea deal is any agreement in a criminal case
between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular
charge in return for some concession from the prosecutor.
This may mean that the defendant will plead guilty to a less serious charge, or to one of the several
charges, in return for the dismissal of other charges; or it may mean that the defendant will plead
guilty to the original criminal charge in return for a more lenient sentence.
A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal
defendants to avoid the risk of conviction at trial on a more serious charge.
Plea bargaining can present a dilemma to defense lawyers, in that they must choose between
vigorously seeking a good deal for their present client, or maintaining a good relationship with the
prosecutor for the sake of helping future clients.
In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In
count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining,
43

they plead guilty agreeing in advance what sentence will be given; however, this sentence can still
be denied by the judge.
Plea bargaining has been defended as a voluntary exchange that leaves both parties better off, in
that defendants have many procedural and substantive rights, including a right to trial and to
appeal a guilty verdict. By pleading guilty, defendants waive those rights in exchange for a
commitment from the prosecutor, such as a reduced charge or more favorable sentence. For a
defendant who believes that conviction is almost certain, a discount to the sentence is more useful
than an unlikely chance of acquittal. The prosecutor secures a conviction while avoiding the need to
commit time and resources to trial preparation and a possible trial. Plea bargaining similarly helps
preserve money and resources for the court in which the prosecution occurs. It also means that
victims and witnesses do not have to testify at the trial, which in some cases may be traumatic.
Disadvantages
Plea bargaining is criticized, particularly outside, on the grounds that its close relationship with
rewards, threats and coercion potentially endanger the correct legal outcome.
Even when the charges are more serious, prosecutors often can still bluff defense lawyers and their
clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted
because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the
charge.
REASONING AND DECISION MAKING IN COURT ROOM

Reason is the capacity for consciously making sense of things, establishing and verifying
facts, applying logic, and changing or justifying practices, institutions, and beliefs based on
new or existing information. Reason, or an aspect of it, is sometimes referred to as
rationality.
Reasoning refers to the process of making sense of things around us. In order to
understand our experiences, draw conclusions from information, and present new ideas,
we must use reasoning. We often reason without being aware of it, but becoming more
aware of how we think can empower us to be better producers and consumers of
communicative messages. The three types of reasoning we will explore are inductive,
deductive, and causal.
Reasoning is associated with thinking, cognition, and intellect. The philosophical field of
logic studies ways in which humans reason formally through argument.
44

Reasoning may be subdivided into forms of logical reasoning (forms associated with the
strict sense): deductive reasoning, inductive reasoning, abductive reasoning; and other
modes of reasoning considered more informal, such as intuitive reasoning and verbal
reasoning.
Reasoning, like habit or intuition, is one of the ways by which thinking moves from one idea
to a related idea. For example, reasoning is the means by which rational individuals
understand sensory information from their environments, or conceptualize abstract
dichotomies such as cause and effect, truth and falsehood, or ideas regarding notions of
good or bad. Reasoning, as a part of executive decision making, is also closely identified
with the ability to self-consciously change, in terms of goals, beliefs, attitudes, traditions,
and institutions, and therefore with the capacity for freedom and self-determination.
In contrast to the use of "reason" as an abstract noun, a reason is a consideration given
which either explains or justifies events, phenomena, or behavior. Reasons justify
decisions, reasons support explanations of natural phenomena; reasons can be given to
explain the actions (conduct) of individuals.
Using reason, or reasoning, can also be described more plainly as providing good, or the
best, reasons. For example, when evaluating a moral decision, "morality is, at the very least,
the effort to guide one's conduct by reason--that is, doing what there are the best reasons
for doing--while giving equal [and impartial] weight to the interests of all those affected by
what one does."
PSYCHOLOGY OF REASONING
The psychology of reasoning is the study of how people reason, often broadly defined as
the process of drawing conclusions to inform how people solve problems and make
decisions.
Psychological experiments on how humans and other animals reason have been carried out
for over 100 years. An enduring question is whether or not people have the capacity to be
rational. What does it mean to be rational? Current research in this area addresses various
questions about reasoning, rationality, judgments, intelligence, relationships between
emotion and reasoning, and development.
ELEMENTS OF REASONING
45

 CONSCIOUSNESS
Consciousness is the state or quality of awareness, or, of being aware of an external object
or something within oneself. It has been defined variously in terms of, awareness,
subjectivity, the ability to experience or to feel, wakefulness, having a sense of selfhood or
soul, the fact that there is something "that it is like" to "have" or "be" it, and the executive
control system of the mindIn contemporary philosophy its definition is often hinted at via
the logical possibility of its absence, the philosophical zombie, which is defined as a being
whose behavior and function are identical to one's own yet there is "no-one in there"
experiencing it.
 COGNITION
Cognition is "the mental action or process of acquiring knowledge and understanding
through thought, experience, and the senses". It encompasses processes such as attention,
the formation of knowledge, memory and working memory, judgment and evaluation,
reasoning and "computation", problem solving and decision making, comprehension and
production of language. Cognitive processes use existing knowledge and generate new
knowledge. The processes are analyzed from different perspectives within different
contexts, notably in the fields of linguistics, anesthesia, neuroscience, psychiatry,
psychology, education, philosophy, anthropology, biology, systemics, logic, and computer
science.
 INTUITION
Intuition is the ability to acquire knowledge without proof, evidence, or conscious
reasoning, or without understanding how the knowledge was acquired. It refers to direct
access to unconscious knowledge, unconscious cognition, inner sensing, inner insight to
unconscious pattern-recognition and the ability to understand something instinctively,
without the need for conscious reasoning. and intuition IS factually related to instinct,
truth, belief and meaning

TYPES OF REASONING
Abductive reasoning
46

Abductive reasoning (also called abduction abductive inference or retroduction) is a

form of logical inference which starts with an observation or set of observations then seeks
to find the simplest and most likely explanation. Abductive reasoning, or argument to the
best explanation, is a form of inductive reasoning, since the conclusion in an abductive
argument does not follow with certainty from its premises and concerns something
unobserved.
Inductive reasoning
Induction is a form of inference producing propositions about unobserved objects or types,
either specifically or generally, based on previous observation. The conclusion of an
inductive argument follows with some degree of probability. A classic example of inductive
reasoning comes from the empiricist David Hume:
 Premise: The sun has risen in the east every morning up until now.
 Conclusion: The sun will also rise in the east tomorrow.
Inductive reasoning reaches conclusions through the citation of examples and is the most
frequently used form of logical reasoning.
Introductory speakers are initially attracted to inductive reasoning because it seems easy,
it can be difficult to employ well. Inductive reasoning, unlike deductive reasoning, doesn’t
result in true or false conclusions. Instead, since conclusions are generalized based on
observations or examples, conclusions are “more likely” or “less likely.” Despite the fact
that this type of reasoning isn’t definitive, it can still be valid and persuasive.
Reasoning by analogy is a type of inductive reasoning that argues that what is true in one
set of circumstances will be true in another. Reasoning by analogy has been criticized and
questioned by logicians, since two sets of circumstances are never exactly the same. While
this is true, our goal when using reasoning by analogy in persuasive speaking is not to
create absolutely certain conclusions but to cite cases and supporting evidence that can
influence an audience. For example, let’s say you are trying to persuade a university to
adopt an alcohol education program by citing the program’s success at other institutions.
Since two universities are never exactly the same, the argument can’t be airtight. To better
support this argument, you could first show that the program was actually successful using
various types of supporting material such as statistics from campus offices and testimony
47

from students and staff. Second, you could show how the cases relate by highlighting
similarities in the campus setting, culture, demographics, and previous mission. Since you
can’t argue that the schools are similar in all ways, choose to highlight significant
similarities. Also, it’s better to acknowledge significant limitations of the analogy and
provide additional supporting material to address them than it is to ignore or hide such
limitations.
Deductive Reasoning
Deductive reasoning derives specifics from what is already known. It was the preferred
form of reasoning used by ancient rhetoricians like Aristotle to make logical. A syllogism is
an example of deductive reasoning in which a conclusion is supported by major and minor
premises. The conclusion of a valid argument can be deduced from the major and minor
premises. A commonly used example of a syllogism is “All humans are mortal. Socrates is a
human. Socrates is mortal.” In this case, the conclusion, “Socrates is mortal,” is derived from
the major premise, “All humans are mortal,” and the minor premise, “Socrates is a human.”
Causal Reasoning
Causal reasoning argues to establish a relationship between a cause and an effect. When
speakers attempt to argue for a particular course of action based on potential positive or
negative consequences that may result, they are using causal reasoning. Such reasoning is
evident in the following example: Eating more local foods will boost the local economy and
make you healthier. The “if/then” relationship that is set up in causal reasoning can be
persuasive, but the reasoning isn’t always sound. Rather than establishing a true cause-
effect relationship, speakers more often set up a correlation, which means there is a
relationship between two things but there are other contextual influences.
Persuasive Reasoning and Fallacies
Persuasive speakers should be concerned with what strengthens and weakens an
argument. Earlier we discussed the process of building an argument with claims and
evidence and how warrants are the underlying justifications that connect the two. We also
discussed the importance of evaluating the strength of a warrant, because strong warrants
are usually more persuasive. Knowing different types of reasoning can help you put claims
and evidence together in persuasive ways and help you evaluate the quality of arguments
48

that you encounter. Further, being able to identify common fallacies of reasoning can help
you be a more critical consumer of persuasive messages.
Analogical reasoning
Analogical reasoning is reasoning from the particular to the particular. It is often used in
case-based reasoning, especially legal reasoning. An example follows:
 Premise 1: Socrates is human and mortal.
 Premise 2: Plato is human.
 Conclusion: Plato is mortal.

Fallacious reasoning
Flawed reasoning in arguments is known as fallacious reasoning. Bad reasoning within
arguments can be because it commits either a formal fallacy or an informal fallacy. Formal
fallacies occur when there is a problem with the form, or structure, of the argument. The
word "formal" refers to this link to the form of the argument. An argument that contains a
formal fallacy will always be invalid. An informal fallacy is an error in reasoning that occurs
due to a problem with the content, rather than mere structure, of the argument.

FAIR TRIALS

Fair trials have special protections that make sure everybody accused of a crime gets
treated fairly, or justly, within the criminal justice system.

IMPORTANCE OF FAIR TRIALS

Fair trials are critically important in every country. They ensure that governments cannot
convict someone or take away their liberty unless they follow fair and just processes. They
make sure that anyone accused of a crime can understand what is happening to them. Fair
 49

trials ensure that people can trust and have confidence in the criminal justice system in
their country.

Governments have the right to maintain law and order and hold people accountable for any
crimes they have committed. However, the serious step of taking away someone’s liberty
can only be justified after they have been given a fair trial.
Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
Article 10, Universal Declaration of Human Rights

The right to a fair trial is a central cornerstone of the Universal Declaration of Human
Rights. This declaration was adopted in 1948, and is contained in many international and
regional human rights treaties, such as the International Covenant on Civil and Political
Rights (which has been ratified by 160 countries). The right to a fair trial is included in
many constitutions around the world. Though individual countries will have varying rules
and procedures around fair trial standards, there are some basic principles about what
makes a fair trial.

BASIC PRINCIPLES OF A FAIR TRIAL

1. The right to information

Everyone who is arrested or detained must be told what their rights are and how to access
these rights. They include:
 the right to notify someone of their situation
 the right to legal representation/advice
 the right to medical assistance
 the right to challenge the lawfulness of their detention
 the right not to incriminate themselves, including
 the right to remain silent the right to complain about their conditions
Foreign nationals also have the right to communicate with consular officials or an
appropriate international organisation.
These rights can sometimes be restricted. For example, a person’s right to notify someone
of their arrest may be delayed if the police think someone else is involved in the crime and
there is a concern that the arrested person may warn the other individual.
50

Most importantly, people are entitled to know what they are accused of, in detail and in a
language they understand.
2. The right to a lawyer
Every person who is arrested or detained must be told of their right to have legal
representation. This can be either their own lawyer or a competent lawyer who is assigned
to assist them if required, in the interests of justice – free of charge if they cannot afford to
pay. They have the right to confidential communications with their lawyer.
3. The right to be heard by a competent, independent and impartial tribunal
Courts must be impartial and independent of the government, the police or any other
influencing factor. The government must ensure that this happens and that there are
enough staff members for the criminal justice system to function effectively throughout the
country. The government must address any corruption or discrimination within the
administration of justice.
People have the right to present their case before a decision is made, see the evidence
against them and be given reasons for any decisions made by the court.
4. The right to a public hearing
Criminal trials must be heard in public (except in rare cases, such as where children are
involved). Anyone can attend a trial, including victims, the media and the general public.
This helps to monitor what happens in court, provides transparency and builds trust in the
criminal justice system.
5. The right to innocence
One of the most important fair trial rights is that everyone accused of a criminal offence is
presumed innocent until and unless they are proved guilty according to law after a fair
trial.
6. The exclusion of evidence obtained in violation of international standards
If statements and other forms of evidence have been obtained as a result of torture, ill-
treatment or other forms of intimidation, they must be excluded from evidence in all
proceedings. A fair trial may also require evidence to be excluded if it was obtained in a
manner that violates other international human rights standards. The only exception to this
is evidence of abuse in a case against someone who is accused of torture or other abuse.
7. The right to have adequate time and facilities necessary to prepare a defence,
and the right to be heard within a reasonable time
51

People charged with a criminal offence must have time to prepare their defence, and
facilities such as a private place to meet with their lawyer. This includes time to review the
evidence against them and find evidence to support their account. This evidence might be
witnesses to what happened, or expert reports such as medical evidence.
Everyone charged with a criminal offence has the right to be tried without undue delay.
The length of time judged reasonable for preparation and for the right to be heard will
depend on the circumstances of the case, such as the complexity of the case and the
conduct of the accused person and the authorities.
8. The right to be present at trial
Everyone charged with a criminal offence has the right to be tried in his or her presence
and to an oral hearing. This gives them the chance to hear and challenge the prosecution
case (the case against them) and present their defence. Their defence is usually their
account of what happened, and may include any witnesses that they want the court to hear
from (see Point 9 below).
The person on trial does not need to present a defence; it is their choice. However, this
decision should only be taken with advice from a lawyer.
Sometimes, people can be convicted in their absence – for example, if they choose not to
come to court on the day of their trial and they have no excuse for this. However, if they
were sick or there is another good reason they did not attend their trial, then they should
receive a new trial before a different court.
9. The right to call and examine witnesses
People charged with a criminal offence have the right to call witnesses on their behalf and
to examine witnesses against them. This can be done by their lawyer or by the accused
individuals themselves in most circumstances. Sometimes a person may not be allowed to
question certain prosecution witnesses – for example, if he is accused of assaulting them.
Victims and witnesses of crime also have rights, and this allows them to be protected and
kept safe. The requirement of fairness must always be respected.
10. The right to an interpreter and translation
People charged with a criminal offence have the right to the assistance of a competent
interpreter, free of charge, if they do not understand or speak the language used in court.
11. The right to appeal
52

Everyone convicted of a criminal offence has the right to have the conviction and sentence
reviewed by a higher tribunal.

CHALLENGES TO FAIR TRIALS

Fair trials do not always happen in many countries because of institutional weaknesses,
such as corruption, insufficient or poorly trained judges and lawyers, and people’s lack of
awareness of their rights. The corruption can run deep and can go from the court
administrative officers, who may decide which case is heard next, right up to an appeal
court judge.
WHAT TO DO TO ACHIEVE FAIR TRIALS IN ACOUNTRY
1. The first step is to know what your rights are. Then you can try to claim them and can
share this knowledge with others.
2. Get information about lawyers or legal aid NGOs that you can contact if you need
assistance. Some may offer legal rights training.
3. Be aware of the institutions in your country to which you can report violations of fair
trial rights. These include the Human Rights Commission and the ombudsman (an official
who investigates people’s complaints against public officials and institutions).
4. Be aware of international bodies that you can contact about violations of fair trial rights
(eg UN Special Rapporteurs*) .
5. Ask your government representatives to do more to ensure fair trial rights (eg more
funding for courts, police and legal aid

WITNESS AND THEIR ROLE IN COURT PROCEEDINGS

A Witness is who has knowledge about a crime or dramatic event through
first-hand experience via any of the senses.
A witness either, either voluntarily or under compulsion, provides
testimonial evidence, either oral or written, of what he or she knows or claims
to know about the matter before some official authorized to take such
testimony. In law, a witness is different from an informant.
53

Witnesses are called to court to answer questions about a case. The

information a witness gives in court is called testimony and is used as
evidence to set out the facts of the alleged crime.
In law a witness might be compelled to provide testimony in court, before a
grand jury, before an administrative tribunal, before a deposition officer, or in
a variety of other proceedings (e.g., judgment debtor examination).
Sometimes the testimony is provided in public or in a confidential setting (e.g.
closed court proceeding).
Calling a witness
In a court proceeding, a witness may be called (requested to testify) by either
the prosecution or the defense. The side that calls the witness first asks
questions in what is called direct examination or examination in chief. The
opposing side then may ask their own questions in what is called cross-
examination. In some cases, redirect examination may be used by the side that
called the witness but usually only to contradict specific testimony from the
cross-examination.
Recalling a witness
Recalling a witness means calling a witness, who has already given
testimony in a proceeding, to give further testimony. A court may give leave to
a party to recall a witness only to give evidence about a matter adduced by
another party if the second party's testimony contradicts evidence given by
the original witness on direct examination.
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EYE WITNESSES
A percipient witness or eyewitness
A percipient witness or eyewitness is one who testifies what they perceived
through his or her senses (e.g.: seeing, hearing, smelling, touching). That
perception might be either with the unaided human sense or with the aid of
an instrument, e.g.: microscope or stethoscope, or by other scientific means,
e.g.: a chemical reagent which changes color in the presence of a particular
substance.
Eyewitness testimony
Eyewitness testimony is the account a bystander or victim gives in the
courtroom, describing what that person observed that occurred during the
specific incident under investigation. Witnesses are usually permitted to
testify only what they experienced first-hand. In most cases, they may not
testify about something they were told (hearsay). That restriction does not
apply to expert witnesses, but they may testify only in the area of their
expertise.
Eyewitness testimony is generally presumed to be more reliable than
circumstantial evidence. Studies have shown, however, that individual,
separate witness testimony is often flawed, and parts of it can be meaningless.
That can occur because of flaws in eyewitness identification (such as faulty
observation and recollection, or bias) or because a witness is lying. If several
people witness a crime, it is probative to look for similarities in their
collective descriptions to substantiate the facts of an event but to keep in mind
the contrasts between individual descriptions.
A hearsay witness
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A hearsay witness is one who testifies what someone else said or wrote. In
most court proceedings there are many limitations on when hearsay evidence
is admissible. Such limitations do not apply to grand jury investigations, many
administrative proceedings, and may not apply to declarations used in
support of an arrest or search warrant. Also some types of statements are not
deemed to be hearsay and are not subject to such limitations.

EXPERTS AND EXPERT WITNESSES

Expert- anyone with extra knowledge and experience that is a layman to
specific fields or disciplines.
An expert witness is one who allegedly has specialized knowledge relevant to
the matter of interest, which knowledge purportedly helps to either make
sense of other evidence, including other testimony, documentary evidence or
physical evidence (e.g., a fingerprint). Expert witness refers to the person with
knowledge and experience on certain disciplines and by the court for help in
understanding certain issues that will help the court make correct and factual
decision.
An expert witness may or may not also be a percipient witness, as in a doctor
or may or may not have treated the victim of an accident or crime.
Expert witness testimony – an opinion that the court can consider in making
decision given by experts recognized by the court to have specific knowledge
and experience/ profession.
Expert evidence- expert evidence is opinion evidence and cannot be given by
non- expert witness, only experts are allowed and their expression is
considered. Expert opinion must
(i). Include factual evidence that requires expert interpretation.
56

(ii). Require experts’ opinion but in inextricably connect to evidence

to the crime
(iii). Explain of technical details.
(iv). Opinions based on facts adduced in the case.
This is required in disputes requiring detailed scientific or technical
knowledge.
(i). It deals with matters of the court so that the court forms its own
conclusion.
(ii). If it is a matter that involves the judge and /or the jury.
(iii). The evidence does not meet the requirements of the court.
(iv). If the evidence parties are capable of giving evidence themselves.
(v). When it is not produced in time to enable parties exchange reports.
Duties of the expert witness.
(i).To be truthful to court, honest in opinion and complete in average of
relevant matters.
(ii). Protective of insufficient and any information regard investigation.
(iii). Must be informed of any developments and current thinking in his/her
field.
(iv). Must ensure he is familiar with the proportion of part 35 of CPC

Qualities of an expert witness

57

 impartial
 Careful & critical in evidence evaluation& presentation.
 Objective
 independent
 consistent in court
 Critical in thinking and ready to modify opinions in the light of fresh
evidence.
 Found knowledge and enough experience to be considered an expert
and the ………
 stand and think on ones feet (cross examination)
 Ability to communicate findings and opinions in the ways the judge can
appreciate and understand.
 Conflict of interest- judges may reject evidence provided by experts is
believed to be involved or is suspected to having financial stake in the
outcome. The same reason why they must agree in certain fees before
taking case. Experts having witness with same clients before and might
fail to give or withhold some evidence should there not be accused
except…….. They are open to clients and either parties of names nature
of relation. An expert should talk to obtain the informed control of both
old and new client before agreeing to act for the letter.
EXPERTS WITNESS AS ADVISER.
1) He/she advices on technical matters adduced in the statement of case
2) Technical content of requests for further particulars/ response to such
requests.
3) Technical significance of documents discussed in court
4) Produce his own report before the court.
58

5) Prepare the counsel about weaknesses to be probed in court expert

Data-any factual information that the researcher obtains from the field either
through experiments or surveys and uses it as a basic of calculations or
conclusion.

VULNERABLE WITNESS
Anyone considered or is a victim of sexual offence or is a person whose
evidence or ability to give evidence is likely to be diminished by reason of
mental health.
Intimidated witness is a victim of sexual offence or an elderly or frail victim, a
repeat victim of a racially instigated crime or a person whose quality and
evidence is diminished by reason of fear or distress in connection with
testifying in the proceeding. A vulnerable witness or intimidated witness
must be protected through special measures available including
 Giving evidence in live television link- subtitle the courtroom
 Screens can be put all over the witness box to ensure his/her does seen
by the offender.
 video recorder and played in court
 Evidence given in private or camera.
 Use of communication devices.
 Intermediary examination.
A reputation witness
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A reputation witness is one who testifies about the reputation of a person or

business entity, when reputation is material to the dispute at issue. They are a
person who aids that because of a persons interactions and personality the
defendant is guilty/innocent.
A confidential informant
A confidential informant is someone who claimed to have witnessed an
event or have hearsay information, but whose identity is being withheld from
at least one party (typically the criminal defendant). The information from the
confidential informant may have been used by a police officer or other official
acting as a hearsay witness to obtain a search warrant.

RELIABILITY OF WITNESSES
Evaluating the credibility of eye-witness testimony falls on all individual
jurors when such evidence is offered as testimony in a trial. IT IS TRAGIC IS
judges are unable to distinguish between a false and accurate eyewitness
testimony. More often than not judges often appear to correlate the
confidence level of the witness with the accuracy of their testimony. Among
children, suggestibility can be very high. Suggestibility is the term used when
a witness accepts information after the actual event and incorporates it into
the memory of the event itself. Children's developmental level causes them to
60

be more easily influenced by leading questions, misinformation, and other

post-event details. Compared to older children, preschool-age children are
more likely to fall victim to suggestions without the ability to focus solely on
the facts of what happened.
Many of the early studies of memory demonstrated how memories can fail to
be accurate records of experiences. Because jurors and judges do not have
access to the original event, it is important to know whether a testimony is
based on actual experience or not.
Police lineups or identification parade
Police lineups or identification parade in which the eyewitness picks out a
suspect from a group of people in the police.

KENYA’S WITNESS PROTECTION AGENCY

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The Kenya’s Witness Protection Agency is a body corporate established under

the Witness Protection Act, (Cap 79 Laws of Kenya) which came into
operation on 1st September 2008 vide Legal Notice No. 110/2008 dated
19th August, 2008 as amended by the Witness Protection (Amendment) Act,
2010.
The Regulations to facilitate the efficient and effective implementation of the
Act were promulgated vide Legal Notice No. 99 of 2011 which came into
force on 5th August 2011.
The object and purpose of the Agency is to provide the framework and
procedures for giving special protection, on behalf of the State, to persons in
possession of important information and who are facing potential risk or
intimidation due to their co-operation with prosecution and other law
enforcement agencies.
In recognition of the centrality of witness protection in enhanced
administration of justice, the Witness Protection Agency, The Judiciary and
the International Commission of Jurists (Kenya) came up with the Witness
Protections Rules, 2015, that guides the courts and interested parties in
trials on judicial witness protection measures and procedures. The Rules were
gazetted vide Legal Notice No. 225 of 2015 by the Hon. Chief Justice on 30th
October 2015 and become operational on 30th November 2015.
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FORENSIC EVALUATION AND ASSESSMENT

It’s done to determine there’s substantial evidence that a defendant suffers
mental disorder. Experts need not to be ours but so long as they have some
belief in the probability or possibility. They just need proofs with “reasonable”
medical and psychological certainty.
1. historically “insanity defense”, the expert must show that
(i).The actor/ offender do not get the wrong or right and their differences in
reference to act charged.
(ii). at the time of comparison the offender was unable to perceive the
nature and quality of act charged insanity at the time of offense- proof due
to mental ………. or disorder was unable to ……….
2. Dimensioned capacity, competency and mitigating circumstances- areas of
defense related to mental health.
(i).diminishined capacity
in this defense, the expert is expected to show that the offender action at the
time of offence were not intended and there was no “Mens rea”. He must show
that the mental health of the offender connects is to the inability to process
the required level of capability to commit the charged crime.
(ii). competency
63

This defense is considered if the accused does not understand the legal
proceedings against them it also ……….. on whether the defendant is about to
assist his/her attorney in the care.
(iii). Mitigating circumstances.
Only considered during sentencing and only regarding the defendant’s
capacity to “appreciate the ………… o their conduct or confirm his conduct to
the requirement of the law” voluntary are of alcohol is excluded.

Memory in court
1) Misinformation effort- memory can be distorted when an original
memory after being expand to misleading interrelated to that memory
distracted from original memory not because it is purposefully deceitful.
2) Induced memories- an entirely fake memory is installed to a person
such as death of a father/ mother when they are alive.
3) From feedback provided to the witness after their testimony e.g.
positive port- identification feedback increases the level of confidence of
witnesses e.g. in their choice. Increases a witness later estimate of
amount of attention paid at the crime negative feedback can deflect
confidence in memory and other measures.
4) Non- verbal feedback of body & language and facial expression. More
repeated questioning of an event can increase a witness confidence in
the accuracy of their memory.
5) Manage and hire and win repeated accounting of events.
REFRESHING MEMORY.
Long term potentiation & large depression.
LTP- active dependent and requires coincident firing of pairs ………….
64

Eye witness memory- person’s episodic memory for a crime or other dramatic
event witness.
Eye witness testimony- an aculeate given by people of an event they witnesses
Evidence- based justice
Reconstructed memory- elaborate memory recall proposed within field and
confirm ………..
The act of remembering is influenced by various ………….. Including
perception, imagination, relative memory and brief …………..

Ideally this recollection of events is detailed; however, this is not always the
case. This recollection is used as evidence to show what happened from a
witness' point of view. Memory recall has been considered a credible source in
the past, but has recently come under attack as forensics can now support
psychologists in their claim that memories and individual perceptions can be
unreliable, manipulated, and biased. Due to this, many countries and states
within the US are now attempting to make changes in how eyewitness
testimony is presented in court. Eyewitness testimony is a specialized focus
within cognitive psychology.

DISCHARGE AND ACQUITTAL

Discharge- the accused is discharged and an offend on basis of the application
for discharge is filled on basis of humans before charge
…………………………………………………..
Acquitted-(not guilty) occurs after the prosecution fails to pure buy and
reasonable doubt the guilt in the affected.
65

Standard proof
Reasonable doubt- in criminal
In civil- provided by lower standards and proof as “the preponderances of the
evidence”
Bench
Perjury- knowing fair statements.
Ethnical and inability drive concerning expert witness.
Experts … do not have ethical obligation of lawyen for loyalty.
Liability … - actions by non- client
-action by client.
DECISIONS ON CHILDREN RIGHTS
Sexual abuse and physical abuse
Age of criminal responsibility- 8
Carnal knowledge – above 12
At 8-12 must be tested that the child understands consequences and his action
Tender years - 10
Accused
Defendant
Reasonable doubt- refers to the doubt bared on reason and common sense
after a careful and impartial consideration of all evidence in court.
Mens rea- knowledge and intent to commit a crime.
66

Persuasion Theory is a mass communication theory that deals with

messages aimed at subtly changing the attitudes of receivers. ... Unlike the
Play Theory of Mass Communication, the concept underlying persuasion is
that information is provided to influence receivers' behaviors.

Persuasion, Its Components, Principles and Techniques

What do you know about Persuasion? Explain its components, principles
and techniques in detail.
Persuasion :
Persuasion refers to the process by which a person’s attitudes or behaviour
are, without duress, influenced by communication. Persuasion pervades over
almost all human activities and it is geared to information transmission in
such a way as to get people to revise old pictures (Predisposition) in their
minds, or form new ones, and thus change their behaviour. To some others
persuasion is seen as “Communication to influence choices”. Still to others it is
“a process that changes attitude, belief, opinion or behaviour”. Actually, we try
to sell ideas, concepts, products etc. through the art of persuasion. Persuasion
may be carried out in offices, workplaces, homes, etc. by fellow workers or
neighbours.

Persuasion has been treated as an art, a craft and a science since ancient times
and classical thinkers like Aristotle and Cicero devoted whole treatises.to the
topic. In the middle ages, it was one of the basic liberal arts which was
mastered practically by all the educated men. Even the religious preachers
used the spoken word to move the men to virtue. In the form of advertising,
persuasion is supporting a major industry these days.

Components and Steps in Persuasion:

The components or factors involved in the communication process are source,

message, channel, receiver and destination. Source factors include the
perceived sender of the communication. The “message” refers to what he says
and includes style, content and organization, while “Channel” designates the
67

medium (e.g. press, radio, television) through which the message is

communicated. As regards the “receiver” factors, it refers to the persons (e.g.
age, sex, etc.) to whom the communication is directed and the “destination”
indicates the behaviour (e.g. voting) the communication is designed to
influence.

The process of persuasion involves a series of successive steps: The

communication is presented; the person pays attention to it; he comprehends
the contents of the message and also the basic conclusion being urged.
However, for persuasion to be effected the individual must agree with or yield
to the point being urged and then finally act on it or in other words carry out
the behaviour implied due to the new change in his attitude. For example, he
enlists in the army, starts contributing to a charity etc.

Functions and Uses of Persuasion

The Public Relations practitioner uses the techniques of persuasion to:

i) Change hostile opinions/attitudes;

ii) Neutralize hostile opinions and indifferent attitudes;

iii) Crystalize “unformed” or latent opinions and positive and negative

attitudes; and

iv) Conserve or reinforce positive or favourable opinions.

Altering unfavourable or hostile opinions into favourable opinions is a

difficult job, however, if the message is compatible with a person’s general
disposition About a subject, the task of persuasion becomes easier.

To neutralize unfavourable opinions is also not an easy task. If complete

change of opinion or attitude is not achievable the second most desired goal
would be to render the hostile opinion harmless or indifferent. It is also
imperative for an organization to know where the silent group stands.
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The easiest job of a persuader is to conserve favourable opinions through

their reinforcement. The public relations practioners, however, should be very
cautious and should not commit the mistake of neglecting people already in
his fold. He should keep in mind that people rarely like to be taken for
granted.

Principles and Techniques of Persuasion:

1. Audience Analysis

For a successful persuasive communication the knowledge of audience—their

social, economic, religious and political structures and values, is of paramount
importance. The process of determining the attitudes of groups and then
suggesting a specific mode of behavior or appropriate communication
medium is called “Channelling”. Evoking concen for quality of life, I need for
deflating price spiral and patriotism are some of the Channelling tactics that
are commonly used in persuasion.

Equipped with such basic knowledge about the target group or audience of
persuasion, the message can be tailored more appropriately and effectively.

2. Source Credibility or Principle of Familiarity and Trust

Persuasion is more complete and successful if the source of persuasive

communication is credible and trustworthy. We buy ideas, beliefs, opinions or
point of views of those persons whom we believe to be more knowledgeable
or expert in the concerned fields, sincere towards our interest and cause and
who have impressive and charismatic qualities.

Sometimes visual symbols surrounding the person engaged in persuasive

communication may profoundly enhance his credibility. A man without beard
would seldom be able to impress the audience if he talks as a religious expert,
while an appropriately dressed ” maulana”, wearing beard and a cap, speaking
in favour of family planning would easily be accepted as a credible source and
his utterances would have more persuasive impact.
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The attractiveness of the source to the audience generally adds to the

persuasive impact. For example, if the source is a greatly admired person,
people tend to pursue gratification from identifying with him or from gaining
social esteem by appearing to be like him. The similarity of the source to the
receiver also enhances his attractiveness and in turn the persuasive impact.

3. Appeal to Self-interest or Identification Principle

The message must be stated in terms of the interest of the audience. If your
message does not address to the psychic or economic needs of your audience
it would hardly attract their attention.

The appeal to self-interest may involve a sense of self-esteem, contribution to

society at large, and a sense of belonging and ego-gratification or a deduction
in tax.

4 Clarity of Message

The message should be self-explanatory and clear. The audience should be

able to comprehend what you want them to do, say or believe. If the message
is meant for internalization and the audience are intelligent and rational, the
drawing conclusion of the message is left to them. If there is any danger that
the audience may draw a wrong conclusion then it should not be left to them.

5 Timings and Context

Selection of appropriate conditions, climate and timings is of vital importance

for the acceptance and adoption of a message. Many charity drives occur
during Ramazan in the Islamic world.

A good public relations practioner should sense the public’s mood and try to
capitalize on it. He should keep himself abreast of what media gate-keepers
consider newsworthy to achieve proper publicity for his organization in the
news media.

6 Audience Participation or Involvement

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Persuasion is enhanced by the active involvement or participation of the

audience. For better quality and more production the suggestions should also
emanate from the audience. Decisions or suggestions formulated after
consulting the audience are adopted more readily and employees are also
more committed to prove the efficacy of those solutions.

7 Action Principles or Hints for Action

Action-oriented ideas and suggestions hinting at practical guidelines have

greater chances of acceptance than those devoid of action and merely relying
on empty appeals.

8 Contents and Structure of Message

Content and structure of messages can also enhance considerably the rate of
their acceptance and in turn attitudinal change. Both rational and emotional
appeals, comprised of statistics, budget figures, civic pride of the audience,
gratitude To their Alma Mater, drama, examples, testimonials and mass media
endorsement are used in devouring persuasive messages. In some situations
two-sided arguments, humour, the factors of Primacy (arguments presented
first in the speech) and Recency (strong arguments presented near the end of
a speech and conclusion—summarizing and reinforcing the speaker’s point of
view—can produce greater persuasive effect.

9 Persuasive Speaking

Delivering persuasive messages through spoken words require a great deal of

proficiency and professionalism. God Almighty exhorts His Prophet (peace be
upon him) in Quran while engaged in persuasive dialogues, he should lay
stress first on the points which are undisputable and common between him
and his audience.

Psychologists suggest that persuasive impact can be enhanced through

different devices like structured choice, partial commitment and asking for
more but being content with less. In structured choice the audience are asked
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to make their choice from two alternatives , — usually positive and negative.
In partial commitment device, the speaker gets commitment from the
receivers of the message for some action, leaving the other parts of the
proposal for some later stage. When personnel are doubtful about the
willingness of the management to accept the actual financial plan, they ask for
a larger amount than required.

10 Roadblocks to Persuasion

Persuasion in its real sense is not a science. None of the techniques and
devices can claim to get sure-fire results of persuasion. It deals with
complicated and unpredictable human nature. The failure to achieve the
desired results of persuasion, some experts think, may be attributed to
ineptness or false assumptions.

The writers of the book “Public Relations- Strategies and Tactics” have
mentioned four factors, which may create roadblocks to a persuasive message.
These are:

i) Lack of message penetration,

ii) Competing messages,

iii) Self-selection, and

iv) Self-perception

Lack of message penetration results from the fact that the carrier of your
persuasive message is not being attended by many of your audience.
Moreover, the gate-keeping process may also damage the true spirit of your
message. In the face of huge communication media and their constantly
bombarding the audience with competing messages, the audience has been
forced to sift messages suiting to their conditions.

Picking up or consumption of only those messages which suit to the taste,

conviction or cause of the audience and ignoring information coming from
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other side, poses a big problem for a persuasive communicator. Potential

audience of a Friday sermon are seldom found in the mosque. People perceive
and interpret the messages in the light of their own predispositions. Because
of this habit of self-perception the same message is differently understood by
different people.

There also exist techniques to make people more resistant to persuasion. One
effective way of making a person more resistant to subsequent persuasive
attacks is to commit him in advance to his initial belief by encouraging him to
make a public announcement about it; Commitment becomes even firmer
when the person is led to make irreversible decision and to take action on the
basis of his initial belief.

The Ethics of Persuasion

Like other professionals, the public relations practioners should also abide by
certain norms and ethics of their profession. They should avoid the use of
false, irrelevant land illogical arguments, gimmicks or half-truths to convince
their audience. If they are not expert in the concerned field, they should not
pose to be the one. Such appeals which may arouse hatred and bigotry, should
not find favour with a public relations practioner. The concealment of your
real purpose of persuasion may also endanger the credibility and trust of your
persuasive communication. The public relations practioners should be clear-
minded and should never try to deceive their audience.

OPINIONS WITHIN JUDGMENTS

If more than one judge is deciding a case, the judgment may be delivered unanimously or it
may be divided into a number of majority, concurring, plurality, and dissenting opinions.
Only the opinion of the majority judgment is considered to have precedent-setting weight.
Some examples of opinions within judgments include:
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 Majority opinion: the opinion of more than half of the judges deciding a case. This
opinion becomes precedent for future cases as it represents the views of the majority of
the court.
 Concurring opinion: the opinion of a single judge or judges that agrees with the final
outcome of the majority opinion but disagrees in whole or in part with the reasoning.
 Plurality opinion: the opinions of different judges of the court when a majority
judgment is not obtained. An example of a plurality opinion is a court of three judges
each rendering a different concurring decision, agreeing on a final outcome but
disagreeing on the reasons justifying that final outcome.
 Dissenting opinion: the opinion of a single judge or judges that rejects the conclusions
of the majority decision in whole or in part, and explains the reasons for rejecting the
majority decision.
Ratio decidendi or precedent
Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or
"the rationale for the decision". The ratio decidendi is "the point in a case that determines
the judgement" or "the principle that the case establishes". In other words, ratio decidendi
is a legal rule derived from, and consistent with, those parts of legal reasoning within a
judgment on which the outcome of the case depends. It is a legal phrase which refers to the
legal, moral, political and social principles used by a court to compose the rationale of a
particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on
courts of lower and later jurisdiction.

The process of determining the ratio decidendi is a correctly thought analysis of what the
court actually decided—essentially, based on the legal points about which the parties in the
case actually fought. All other statements about the law in the text of a court opinion—all
pronouncements that do not form a part of the court's rulings on the issues actually
decided in that particular case (whether they are correct statements of law or not)—are
obiter dicta, and are not rules for which that particular case stands.

The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper
understanding of the ratio of a precedent, the advocate can in effect force a lower court to
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come to a decision which that court may otherwise be unwilling to make, considering the
facts of the case. Ratio decidendi also involves the holding of a particular case, thereby
allowing future cases to build upon such cases by citing precedent. However, not all
holdings are given equal merit; factors that can strengthen or weaken the strength of the
holding include:

Amicus curiae
An amicus curiae (literally, "friend of the court"; plural, amici curiae) is someone who is
not a party to a case and may or may not have been solicited by a party, who assists a court
by offering information, expertise, or insight that has a bearing on the issues in the case,
and is typically presented in the form of a brief. The decision on whether to consider an
amicus brief lies within the discretion of the court.