The criminal justice system is not based on truth, a myth that many people still believe in because of Hollywood and popular police movies. Instead, our modern courts use what is known as an adversarial system, which basically pits two arguments against each other. Depending on the skill of the representatives, the judge or jury makes a decision on the innocence or guilt of the defendant.
While even that might seem to have a sense of fairness, when the full weight of the government prosecuting a person is taken into account, it still becomes apparent how one-sided a criminal case can be. In this regard, specific strategies are available for the defense to use effectively in limiting the prosecution considerably. A top-rated attorney tries to use as many of these strategies as possible to maximize success.
How the Strategies Work
In any criminal case, the guilt of the defendant has to be proven beyond a doubt. This is called the burden of proof. However, most criminal cases don’t make it to a full trial. This is because prosecutors work actively to settle criminal cases in the plea bargain process. By scaring the defendant into agreeing to a lighter sentence to avoid the risk of a more serious one, the prosecution gets a guaranteed conviction, and the case avoids a lengthy trial process. This approach is heavily favored; if the court had to hear every case fully, it could never keep up with the caseload demand.
Because of the above, a criminal defense attorney has two major categories of defense strategy: procedural moves and arguing the case on the merits.
The Procedural Aspect
The procedural maneuvering occurs as soon as the criminal case is filed, arraigned, and the defendant is indicted or charged. Known as the technical side of a criminal case, it involves review, discovery and challenging all the filings and evidence used in a court, depending on the weaknesses a defense attorney identifies in favor of the defendant.
These arguments, often labeled “technicalities,” can be extremely powerful, removing damaging evidence or showing how the prosecution and law enforcement made critical mistakes in not following the law. They include:
Evidence Eligibility
Only certain evidence is allowed in a trial. Suppose law enforcement collected evidence incorrectly, tampered with it, or cannot confirm it is associated with a case (chain of custody). In that case, the defense can argue the evidence should be thrown out and not used in the trial. If the judge agrees in an evidentiary hearing, it’s a win for the defense.
Proper Arrest and Incarceration
Police and law enforcement are supposed to follow the letter of the law with detention and arrest. Where it’s clear the defendant is being restrained and arrested, his or her rights have to be notified (Miranda rights). However, law enforcement has repeatedly skipped this step to get the defendant to give damaging statements or information. Where this has occurred, and the right should have been notified, the statements and answers can be thrown out.
Proper Evidence Sharing
The prosecution is required to share all evidence with the defense attorney before trial. If evidence is withheld or not shared, the trial can be declared in error, forcing a retrial.
Police Reports & Errors
Incorrect analysis and processing of documentation oftentimes leads to mistakes. More than one defendant has been charged who was clearly not the person on the forms or to be arrested, or an address was wrong. This can trigger a mistrial or stop a prosecution before trial, having arrested the wrong person.
Jurisdiction
This authority involves the authority of the prosecution and court to prosecute a case in their court. If the jurisdiction is wrong, the case can be stopped because it is not allowed to be heard in that court or law enforcement exceeds its area of enforcement.
Experts & Third Party Eligibility
Expert witnesses are credentialed voices that the court accepts as valid authorities in their field. If an expert witness can be disqualified before trial, their testimony won’t be heard. The courts made changes in 2023 regarding the admissibility of expert testimony with Rule 702.
Witness Eligibility
The same goes for witnesses; if a proposed witness has nothing to do with a case and it can be proven, the witness can be removed and any testimony struck.
Jury Selection (voir dire)
Finally, if a case has to go to trial, the selection of the jury can have a big influence on whether the group leans towards guilt or innocence of a defendant.
The Case Merits & Argument Elements
On the merit side of things, the defense attorney can also focus on the facts of the case to show the defendant’s innocence. Again, the burden of proof is on the prosecution; if there is doubt about the case, neither the judge nor the jury can convict under the law. So, the defense’s strategy focuses on showing the case is faulty, or the evidence doesn’t add up. This is done through the following:
Supportive Witness Testimony
Having defense witnesses can either confirm the witness was nowhere near the crime or that his or her version of the case facts is the truth. The more valid witnesses, the better the defense, usually.
Evidence, Facts, and Credibility That Favors the Defendant
All types of evidence, from video to documentation to evidence gathered at the crime scene and showing the defendant was not the criminal involved, depending on how it is interpreted.
Police Documentation
As noted above, law enforcement is human and makes mistakes as well. Defense attorneys frequently find mistakes and use them to show the defendant was wrongly accused.
Expert Witnesses
The defense can also bring in valid expert witnesses with the authority to argue the prosecution’s case is faulty.
The Law Itself
Criminal law requires specific elements to be met. If the prosecution failed to show this conclusively, the defense can point out where the law’s requirements were not met.
Caselaw
Prior criminal cases decided at the appellate level become law in how crimes should be judged and case issues interpreted by the judge in lower courts.
The Behavior of the Prosecution
If the prosecution does anything that seems biased, abusive, or extreme, the defense can ask for the court’s protection and even the removal of the prosecutor.
Defendant’s Testimony
Finally, one of the riskiest strategies is that the defendant can testify and speak for him or herself as a witness in their criminal case. But it also opens the defendant to cross-examination by the prosecutor.
Again, there are lots of options available to a defense attorney to make the best case for a criminal defendant. It’s also the reason why choosing an experienced criminal defense attorney matters so much. Every step, form, meeting, and hearing matters. Expert attorneys understand this process well and use every opportunity to push, argue, and solidify the defense’s best chance of success in a case.
