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Criminal Defense Strategies

Developing a defense with your attorney for your criminal case.

In general, a criminal defense strategy for your criminal prosecution will emerge as your criminal defense attorney finds out more about what the prosecutor is planning to do. Because each criminal prosecution is different from every other, a particular criminal defense strategy is unique to the situation at hand. For example, if a prosecutor in one case lays out a story that has the defendant at the scene of the crime, the defense attorney will probably ask questions that may lay out a different story showing the defendant at another location. In addition, how the criminal defendant acts and answers questions that the prosecutor poses will also change the criminal defense strategy.

However, this is not to say that a criminal defendant and his or her attorney sit around and make up false stories that would tend to show innocence. Generally speaking, a criminal defendant that is open and honest with his or her attorney will have a better chance of putting up a great defense. But it is worthwhile to keep in mind that the truth that a defendant sees is not always the truth that a prosecutor sees. Indeed, there are often multiple versions of the truth that exist during a criminal prosecution. For example, if a defendant is on trial for murder charges, there could be many different true stories. In one storyline, the defendant killed the victim in cold blood as a premeditated crime. In another story, the defendant only killed the victim in self defense after the victim tried to assault the defendant. The best criminal defense strategy comes when the defendant and the defense attorney lay out a story that is based in truth and shows the defendant in the best light possible. Keep in mind that, even if a defendant is guilty, depicting a story in a better light could lead to a plea bargain or even being found guilty on a lesser charge.

Criminal Defense: The "Truth"

Much like a great storyteller, a criminal defense lawyer is an expert at telling a truthful story in a number of different ways. In reality, a prosecutor and a defense attorney can both use the same foundation of factual events and come up with two completely different stories. You can think of this in the way that you would think of a map of the United States. In one map, you have the states depicted in their geographic areas with the state borders in dark lines. However, the other map instead shows the United States in a gradient scale of colors based upon the average income per population. Although both maps are true, they will probably look nothing alike. In the end, it is up to the criminal defense attorney and the defendant to come up with the best story possible for the defendant's situation. The end story should have such characteristics as:

  • Being based in a truthful foundation of evidence. As an example, if the defendant's car was being used as a getaway car, show that the defendant's car was stolen from his person at gunpoint the very morning of the crime.
  • Having the ability to gain sympathy from the judge or the jury. For example, if possible, show that the defendant tried to withdraw from a crime before it was committed and even went as far as reporting the potential crime to the police in an attempt to prevent the crime from occurring.
  • Explaining and proving why the events that occurred in the defendant's story were the actual events. For example, if the defendant claims to not have been at the crime scene when the crime occurred, the defendant's story must show why the defendant was not there.

It is important for the criminal defense that the defendant's story be accurate and have the essential elements, based in truth, that point towards the defendant's goal. The defendant and his attorney should work carefully on this story before presenting it in court to make sure that no part of the story can be challenged by facts.

Denials and Admissions of Guilt

It is almost impossible for two defendants to come up with the exact same version of the events that took place during the crime. Generally speaking, a defendant's story will fall into one of three categories:

  • A "confession" story. This is where a defendant admits the crime to his or her attorney. As an example, the defendant comes into the attorney's office and admits that, "yes, I did break into the car and steal the radio as well as the money in the glove compartment."
  • A "complete denial" story. This is where a defendant denies all of the charges that the prosecution has laid against the defendant. Perhaps the most popular complete denial story is one that involves an alibi. "There was no way I perpetrated the crime that I am accused of. In fact, I was out of town with my girlfriend. Why are they charging me with grand theft?"
  • An "admit and explain" story. This type of story generally falls somewhere between a confession and a denial story. These stories normally involve a legal justification for the "crime." For example, "They are saying that I broke the window of the car and stole the radio and the money. However, what I actually did was use the key my friend gave me when he went out of town to remove the valuables from his car that was parked in a bad neighborhood. The glass must have been broken after I removed the radio and the cash from the car."

Creating a Criminal Defense Strategy

After the criminal defendant tells his or her story to their criminal defense attorney, they will probably collaborate with each other to come up with a strategy that will work best in court. Generally speaking, this strategy will be based upon the story that the defendant tells his or her attorney, but will probably not be exactly the same. Coming up with a defense strategy is not as simple as telling the truth in a way that shows the defendant's innocence or lessened legal culpability. Instead, it will often involve weighing witnesses' credibility, figuring out the reputation between the community and the police as well as various other legal factors. In sum, all of these considerations will go into making a "theory of the case" that will be based upon the defendant's story as well as other provable facts.

To look at how a great criminal defense strategy is created, let's look at an example. Suppose that a criminal defendant has been charged with burglary. The defendant goes to an attorney's office and tells his story, which he also confessed to the police after being arrested. Apparently, the man was identified by an eyewitness shortly after the burglary took place. The witness is not certain of the identification, but is "pretty sure" he got the right face. The defendant tells his attorney that, although he was present at the scene of the crime, he did not take part in the execution of the crime. Instead, he merely went along so that his friends would not think less of him. In addition, when the defendant was arrested, the police did not inform him of his right to be silent or his right to have an attorney present when he was questioned.

In the three categories above, this story would best be classified as a "confession" story because the defendant knew about the crime and was present while it was committed. However, the defense strategy would most likely be based upon a theory that the police used a weak eyewitness's account to make a stronger case then they should have and bullied the defendant into giving a confession. This is a theory that is based in truth and shows the defendant in a better light.

Putting this theory forward in court could be very beneficial to the defendant. Indeed, the defense attorney would probably file a pretrial motion asking for the confession to the police to be omitted from the record because the police engaged in an unconstitutional questioning by not reading the defendant his Miranda warning. In addition, the defense attorney would also probably try to question the eyewitness and show that the identification was so flimsy that it would not establish "beyond a reasonable doubt" the true identify of the perpetrator. Depending upon the strength of the arguments, this theory could have its goal for the case to come back with a verdict of not-guilty, or for the prosecutor to offer a plea bargain to a lesser charge.

Coaching

Because attorneys are charged to be "zealous advocates" for their clients, this often means that they will provide coaching to their criminal defendant clients in order to put the best defense theory forward possible. In many situations, defense attorneys will:

  • Use mock-interviews in order to get defendants to commit the defense theory to memory,
  • Bring defendants to important crime scenes in order to stimulate memories, and
  • Get defendants to write down the version of events as seen from their own point of view.

Additionally, defense attorneys will often explain the theory of the case that the prosecution is using in order to get defendants to include important pieces of fact in their testimony. For example, if a key part of the prosecution's case is that the defendant was in a certain location at a certain time, the defendant needs to remember to tell a version of events that does not place him at that location at that time.

Defense attorneys should tell defendants about various pieces of information about the prosecution's case so that the defendant knows what kinds of evidence they need to produce. For example, suppose that Dennis has been charged with conspiracy to commit armed robbery. Dennis' attorney could tell him:

"Dennis, you are being charged with conspiracy to commit armed robbery. What this really means to you is that you are being charged with planning with at least one other person to commit armed robbery and have taken steps towards achieving this goal. In speaking with the assistant district attorney about your case, I now know that they plan on showing that you purchased a gun after talking with Frank and George. They claim that your talk with Frank and George was to plan the armed robbery and that your purchase of the gun was in furtherance of the crime. Now, do you have anything to tell me about your purchase of the gun or your talk with Frank and George?"

Now, because Dennis has this information, he will be in better position to give the defense attorney the story that explains the gun purchase. For example, Dennis could have bought the gun to defend himself from Frank and George who said they would hurt him if he did not participate in the discussed armed robbery. Then, the purchase of the gun would not be in furtherance of the crime.

The Truth Could Set You Free. . . In a shorter amount of time

Another reason that defendants should tell their defense attorneys the complete truth is that it could lead to a lesser charge. If, for example, a defendant is charged with armed robbery, and the defendant tells his attorney that, yes, he did rob the store, but not with any weapon, this could reduce the charge to simple robbery, a much less serious crime in terms of potential jail time.

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