On 15 June 2017, the Asian Law Students Association (ALSA) organized a legal training workshop together with CanLaw.
The speaker, Mr Sivaraj Retinasekharan, shared the insights and experiences he gained from his practice as a criminal defence lawyer with the law students.
So after filling our heads with truth, wisdom and knowledge from Mr. Sivaraj, we are going to bust all the myths you hold about criminal law practice in Malaysia.
Myth #1: Being a criminal lawyer means you’re always in your suit. Always in style.
We all have seen the movies. The criminal lawyer walks into the interrogation room with a pristine suit to advise his client and then walks out with just as much style that a lawyer can legally have.
He then shows up in the court with his briefcase and argues his head off in order to secure his client’s freedom. All of this in his pristine suit, lookin’ as stylish and fresh as the guys in a style magazine.
In reality, it is all very different.
Criminal lawyers are always on standby. They sometimes get phone calls in the early morning hours, as early as 2 or 3 a.m. to provide legal assistance to clients who had just been arrested.
So when you get emergency calls in the wee hours, you really don’t have time to be stylish.
Also, unlike Phoenix Wright or even Matt Murdock, criminal lawyers do not simply shout OBJECTION in court whenever they like. They actually spend a lot more time on their computers, doing a lot of research, preparing submissions after submissions.
Real court trials are NOWHERE near that dramatic.
Myth #2: Criminal lawyers speak super hebat English and rarely speak other languages.
Sometimes they may bring along a translator to help bridge the language barrier between them and the defendant.
Mana ada. Jangan tertipu lah.
We live in a multilingual, multiracial Malaysia, so criminal lawyers would definitely need to speak other languages on many occasions.
Thankfully as Malaysians, a great majority of us could speak at least two or three languages.
Bahasa Malaysia, Mandarin, Tamil, Cantonese, you name it.
The ability to converse in other languages helps criminal lawyers to communicate with clients (also the police, officers of the court) who may not understand English very well.
Saves them time, hassle and cost of getting a translator, too.
Myth #3: If you’re arrested, you are only given ONE phone call.
Movies such as The Dark Knight have placed a large emphasis on suspects having only one phone call to make.
This creates a very dramatic choice where the suspect has to choose carefully who they should call. If nobody picks up the phone call, then mati lah. The arrested person don’t get to make another one.
Arrested individuals are given the right under Section 28A of the Criminal Procedure Code to contact a lawyer, a relative or a friend about his arrest.
According to Mr Sivaraj, arrested individuals are usually allowed to make at the least 1 phone call to their lawyer and 1 phone call to inform their family. And of course, if nobody picks up the call, he gets to attempt at it again.
This isn’t as harsh as you think, isn’t it?!
Myth #4: Criminal lawyers can visit their clients in prison whenever they want.
A typical crime film would depict lawyers visiting their clients all of a sudden to question their clients on a pointless detail in the case. No prior arrangement is needed.
Not only that, the prison staff are generally distrustful and may even be impeding the defence lawyer’s efforts to help his client.
According to Mr Sivaraj, it is a formality for a criminal defence lawyer to arrange the prison visit at least 3 days before the visit itself.
Additionally, the authorities would check the lawyer’s credentials with the Bar Council, in order to make sure that there is no falsification of records.
Prison officials are also quite accommodating, especially to those who make visits to the prison frequently. Sometimes a lawyer may not even need to wait 3 days to visit their client.
Myth #5: You’re doomed when you’re sentenced to life-imprisonment. You’ll rot in prison FOREEEVAAA.
In a typical crime drama, the defendant is sentenced to 10 long years in prison. The defendant then sees their loved ones grieve, grow up and possibly grow distant from them after a long separation.
It is all portrayed in a very depressing manner, with the defendant missing out on a long period of their lives due to their crimes.
Well, let me break it to you. A 12-years prison sentence does NOTmean that a defendant would serve exactly 12 years in prison.
Let’s put it this way: A prison sentence can be split into 3 equal portions — the prison part, the ‘good behaviour’ part, and the parole part.
According to Mr Sivaraj, any eligible prisoner would be allowed to serve the last 1/3 of his sentence out of prison on parole. Some may also be released during the 2/3 of his sentence for ‘good behaviour’. It’s all up to the Parole Board to decide.
The eligibility for parole can be found under Section 46E and 46F of the Prisons Act 1995.
So, the length of time spent in prison is not exact.
Also, weekends are counted as ‘replacement days’ and replacement days are deducted from the total length of sentence. So if a man is served a 12-year prison sentence, he may end up spending only 3.5 years in prison.
Myth #6: The victim plays a super important role in the case.
Usually, the victim in dramas are questioned in court as to what has happened.
The victim would then break down and utter something that changes the entire case COMPLETELY. The judge would then pronounce the defendant as guilty and the defendant would no longer have a part in the trial.
Unlike most movies, the victim does not have THAT MUCH of an impact on the trial. That’s not to say that they’re not important at all.
According to Mr Sivaraj, the victim’s responses and statements in court are recorded, but these are not the main factors that determine the verdict.
The victim’s testimony, however, does play a role in the sentencingof the defendant. The rationale for this is so that a victim is able to exact some retribution for the crime committed against them.
Myth #7: Alibi is the ultimate defence for the defendant.
The scene is set with the defendant being questioned on the stand. The prosecution asks the defendant his whereabouts during the crime. The defendant then pulls out a solid alibi to disprove his involvement in the crime.
And BAM! The defendant is safe and is able to go free.
Well, not quite.
According to Mr Sivaraj, all evidence and proof of an alibi must be submitted to the courts 10 days before trial. This is to keep both parties informed of the evidence levied against them.
So, an alibi is NOT something that can be ‘surprisingly’ revealed on the witness stand during trial.
Any ‘surprise’ alibi may actually be disregarded by the judge because it does not comply with the procedures.
So, things are less dramatic.
It is clear that the court room is VERY different from what we see on crime shows and movies.
More importantly, being a criminal lawyer in real life is nowhere near as entertaining as depicted in the shows. But criminal lawyers do play a very IMPORTANT role in our society.
They do their best to secure freedom for their clients and even if their clients are not acquitted, they ensure that the sentence is meted out accordingly.
They also guarantee the rights of their clients by ensuring that they are not mistreated while in custody and that they get a fair trial.
Therefore, criminal defence lawyers are pretty… legendary.