Presenting a Defense

“Presenting a defense,” “fighting the case,” “taking it to trial.” These are all concepts which mean roughly the same thing: the client has rejected a plea offer and wishes to proceed to trial or a hearing. On average it happens in about 6-9 percent of cases (of course this may vary depending upon the lawyer). Unfortunately, the topic of presenting a defense gets little more than lip service in most criminal lawyer blogs.

There is certainly nothing wrong with discussing the different ways a client can achieve some or all of their objectives through plea negotiations. It is important that people with criminal cases understand all of the options that may be available and how an attorney can help achieve them. But, sometimes lawyers can be hasty to assume every client’s primary objective is to mitigate punishment and avoid a criminal record.

False accusations are real. Overcharging a criminal offense is real. Constitutional violations by the police are real. So what do we do when a client seeks vindication?

The Presumption of Innocence and Proof Beyond all Reasonable Doubt

 The starting point is always here. The biggest misconception about criminal justice is that a jury hears evidence from both sides and decides which is more persuasive. This is wrong. A criminal lawyer who seeks to prove his client innocent is not doing his client a service; that lawyer is setting the bar higher than what is required by the United States Constitution. Relying on the State’s lack of evidence and cultivating reasonable doubt through cross-examination of State’s witnesses is not only a trial strategy, it is frequently the best trial strategy.

A Criminal Investigator

Sometimes the evidence can look bad even for a person who is not guilty. Sometimes relying upon the presumption of innocence may not enough or too risky. Criminal investigators are usually former law enforcement and frequently former detectives or investigators. They can interview witnesses, collect evidence ignored by the police and gather documents or other pieces of information which could cast doubt upon the State’s case.

Expert Witnesses

DNA experts, handwriting experts, toxicologists, doctors, nurses, sometimes even former law enforcement officers fall under the heading “expert witnesses.” The law defines an expert witness as a person with “scientific, technical, or other specialized knowledge,” who can “help the trier of fact understand the evidence or to determine a fact in issue.” In the right case, an expert can offer an opinion that an important fact presented by the prosecution is anywhere from “not scientifically possible,” to “unlikely.” Similarly, an expert can testify about the proper protocols and process in a particular field so that the jury can make a comparison to the case at trial.

 Learned Treatises

Sometimes a defendant can present expert-like opinions without even calling an expert. The law permits a jury to consider information presented by a lawyer from a “learned treatise,” or a publication which is established as reliable authority by an expert’s admission or testimony. For example, almost every doctor will admit that the Physician’s Desk Reference, is a learned treatise in the field of medicine. When they do, the lawyer may read to the jury from any part of that book.

Fact Witnesses

Perhaps there are witnesses who have important information but were ignored by the police. In the right case, a defendant could use his subpoena power to compel that person to come to court and testify.  Of course, this should always be weighed against confusing the jury into believing the Defendant has any burden to present evidence whatsoever.

What is Best for my Case?

There is no single formula to defending every case. With the exception of urging the presumption of innocence and relying upon the State’s enormous burden of proof, there are pros and cons to every approach. A client should demand to hear what his or her attorney’s approach would be. Criminal defense is the defense of a person’s Constitutional rights. Client’s should know how their rights inure to their benefit and what exactly “fighting the case” would look like.

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