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How to Defend a Criminal Case* - Part II

In this Part II of How to Defend a Criminal Case, we will explore more of the investigative stage of preparing a criminal case for negotiation, motions and, possibly, trial. After determining the elements of the offenses charged, it is imperative to determine the facts known to the prosecution, though it may be impossible to be absolutely certain of exactly which facts the prosecution knows. While the prosecution usually has to disclose tangible evidence (written and recorded statements of police and witnesses), it may not be required to disclose some particular piece of important information disclosed to the prosecution by a witness (including police) that is not found in any report or other recording. So, it may not be possible to know everything the prosecution knows, but you can come pretty close.

An appropriate starting point to gather the facts is for the client/defendant to make detailed notes of the events at issue. After all, the defendant should know the events that he or she is accused of participating in that form the basis for the crimes charged. These notes should be sufficiently detailed, especially without the aid of counsel to guide the defendant through the most pertinent facts.

After the accused's facts have been gathered, the next most appropriate step to take is to participate in the formal discovery process permitted under the applicable rules of criminal procedure. Usually, there is an appropriate document to be served upon the prosecution to let it know that you intend to participate in the discovery process. This act often permits the prosecution the right to reciprocal discovery, i.e. that, because the defendant participated in the discovery process, he or she is now subject to having to disclose certain similar information. Typically, participating in the discovery process will yield copies of all police reports, witness statements, exculpatory information (information tending to negate the guilt of the accused), photographs and video or audio taped information. While this discovery information is often fairly comprehensive and may seem like the end of the line, it is not.

It is important to conclude the discovery process by following up with every conceivable loose end presented by the defendant's version of the facts and all of the information obtained from the prosecution in the formal discovery process. Here, it is impossible to be specific because this is the point at which all cases diverge from each other. It is important to determine if the information implicates other previously-unknown documents and witnesses. It is important to gather the remaining information and to try to interview important witnesses. After no stone is left unturned here, it is time to evaluate your case for the next stage of negotiations, motions and trial preparation.

Often, the criminal justice process permits the defense to file certain motions to try to summarily win the case or, at least, make the case more favorable [read: more winnable], to the defendant. However, there are certain motions in which the defendant must choose between refraining from filing the motion and obtaining a possibly better plea offer and, at least, risking that the government fails to make an offer or makes a much worse offer if the motion is filed. While this provides a chilling effect to defending a criminal case, I am sorry to say that this is a pretty universally accepted concept in which the defendant has to make an often life-changing decision whether to take what is behind door number 1 or risk everything to go for the gold. The filing of Motions to Dismiss and Motions to Suppress often trigger the government's threat to rescind any offers or, at least, to make them much worse. A motion to dismiss seeks to get the entire case dismissed, whether permanently or temporarily, with conditions for re-filing. A motion to suppress seeks an order excluding important evidence, such as confessions, searches yielding contraband, etc. If a defendant wins either of those motions, often the case is worse for the prosecution and either the plea gets better for the defense or ultimate success is closer to one's grasp.

In our next installment, we will explore more about pretrial motions, pleas and trial preparation.

*The information provided herein is a general guideline, does not constitute legal advice and should not be followed without first consulting a lawyer. The reason simply is that the approach to a criminal case necessarily must vary depending upon the facts of a specific case. For instance, there could be emergency action that must be taken in lieu of or before other steps outlined here that would be beyond the scope of this article and, again, vary from case-to-case.