How to Build a Criminal Defense Strategy

Knowledge of the law and facts are critically important to tipping the scales in your client's favor.

Perhaps nobody plays a more important role in the preservation of the Bill of Rights than the criminal defense attorney. Five of the first 10 amendments to the Constitution specifically protect the rights of those accused of crime. Whether you are private defense counsel, a public defender or a student attorney in a law school clinic, your responsibility to your client is to ensure that he receives a fair trial, that all facts are heard and that justice is done.

Things You'll Need

• Police report
• The prosecution's discovery
• Grand jury transcript
• Your client's evidence
• Access to a law database or library
• Digital recorder
• Private investigator

Instructions

1. Interview your client. Assuming you have agreed to represent him, you are primarily responsible to your client, the one whose life and liberty are at stake. Interviewing your client provides you with an opportunity to understand your client and his needs. Use this information to assess the likelihood of conviction. Discuss with your client the odds of acquittal and all possible options, including plea bargains.

2. Contact the prosecuting attorney. If you are a seasoned defense veteran in your jurisdiction, you likely have a history of interactions with the prosecutor, and know what to expect from her. Without compromising your client's confidentiality or disclosing your early thoughts on the case, try to glean from the prosecutor her initial disposition toward the case. The prosecutor's demeanor and approach can significantly influence your strategy. Also use this as an early opportunity to discuss arrangements for the exchange of discovery.

3. Conduct your own investigation. The police will not focus on finding exculpatory evidence for your client. You need to do your own homework. If you have the resources, a reliable private investigator provides tremendous help in this process. You and your investigator should attempt to contact the witnesses listed in the police report, as well as the reporting officer. Visit the alleged crime scene and take your own photographs. Interview friends and acquaintances of both your client and the alleged victim. Gather any documentary evidence from your client or the parties you interview. Contact expert witnesses whose areas of expertise may be helpful to a jury in understanding your client's position.

4. Read the grand jury transcript meticulously. This assumes that your jurisdiction uses the common law grand jury system to issue indictments. The grand jury transcript is a gold mine of useful information. State witnesses often contradict one another or their previous statements. To the extent that the case raises any relevant constitutional issues pertaining to the police investigation, you will discover it in the grand jury transcript and the subsequent wording of the indictment.

5. Note all constitutional and statutory issues. Once you have a sufficient grasp of the facts and a solid overview of the case, make a list of all of the legal issues encountered. Use a visual aid, like a two-column chart, if necessary. List all the statutory charges against your client, including all the elements of each charge. Assess the weight of the evidence for each charge and its lesser-included offenses. Next, list all possible constitutional issues arising from the investigation. Any good faith constitutional argument against police conduct constitutes your first line of defense.

6. Frame the facts. A jury trial is akin to competitive story-telling. The side that presents the more believable story usually wins. On the basis of the evidence, create or adopt a theme or theory that provides an alternative way of viewing the facts than those provided by the prosecution. Stay consistent with this theme throughout the trial, including in your opening statement and closing argument.

Tips & Warnings

• Remember that the above suggestions are generic, and do not take into consideration the various rules of evidence and criminal procedure in each jurisdiction.

• Your client is ultimately in charge. While you supply the legal expertise, remember you are an authorized legal agent on behalf of your client. Always consult your client before making any major tactical decisions.

• Never lie or allow your client to lie in a criminal proceeding. This includes withholding evidence or knowingly eliciting false testimony on the stand. Zealous advocacy has its limits. For a defense attorney, those limits are breached when the state bar suspends your license or a judge finds you in contempt of court.

References

• LawFirms.com: How to Prepare a Defense Strategy for a Criminal Case;
• The Center for Criminal Justice Advocacy: Criminal Pretrial and Trial Practice
• FindLaw: Batson v. Kentucky, 476 U.S. 79 (1986)

Resources

• "The First Trial: Where Do I Sit? What Do I Say?"; Steven Goldberg & Tracy Walters McCormack; 2009