Peter Schaffer: Being a Criminal Defense Attorney
How to Be a Good Defense Attorney
Good defense attorneys are in high demand. Although you can’t perform miracles, you can find weaknesses in the state’s evidence and aggressively advocate on your client’s behalf. Being a good defense attorney, however, is a lot of work. And most of this work happens outside court. Although you might be anxious to begin making arguments in front of a jury, you should realize that the most important work happens before trial. To set yourself up for success, you must fully investigate the case, argue necessary pre-trial motions, and develop a defense theory. Above all, you must maintain your professionalism.
Investigating Your Case
Read the state’s evidence.The prosecutor should hand over a thick folder of information (or a brick of paper, depending on the case). This material will contain police reports, witness statements, grand jury testimony, the coroner’s report, etc. It will be difficult tackling all of this information at once.
- Divide the material into piles. Put witness statements together, grand jury testimony together, etc.
- Start reading the initial police reports. Highlight names of witnesses. Then turn to the witness statements.
- Take many notes. If you have questions, write them down so you don’t forget them.
- Note anything that is missing. State statutes require the prosecutor to turn over certain information without being prompted. You should read your state statute to make sure everything has been given.
Request other information from the state.Go back over all of the information the state has given you. Look for what they forgot to turn over. File a timely discovery request with the court. You might request the following:
- Copies of any pictures taken. The state probably has pictures and possibly video of the crime scene. Ask them to turn these materials over.
- Criminal history of witnesses. In some situations, you can impeach a witness with a felony conviction. If fellow gang members witnessed a crime, then it would be a miracle if witnesses didn’t have felony convictions.
Review videotaped interrogations.In some states, the police must electronically record every interrogation.You will probably receive a CD of the interrogation. You should watch the entire thing. Look for the following:
- Did the police give your clientMirandawarnings? Make sure all four warnings were given. If the police forgot one, you can suppress the statement.
- Did the police interrogate your client after they requested a lawyer? If so, you can suppress the statements given.
- Did the police rough up your client? Deny them food or water? Not let them use the bathroom? If so, you might be able to suppress any statement as involuntary.
Talk to your client.You can’t defend someone without meeting with them. Visit the jail and talk about the case. Assure your client whatever they tell you is confidential. Your client might know of witnesses who can offer helpful testimony.
- Be honest with your client. There’s no reason to sugarcoat the truth. If you think it will be hard getting an acquittal, say so. Talk about your client’s options, such as a plea bargain.
- Also take notes of what your client tells you. If they change their story, you want to know it.
Visit the crime scene.Perform your own independent research. If you don’t have time, then hire a private investigator.Don’t simply accept that the police report accurately represents the crime scene.Visit the scene at the time of day the crime took place. Check the following:
- How is the lighting? If the crime happened on the street, could witnesses really see?
- Where were witnesses standing? Was something obstructing their view?
- How busy is the area? Are there homes nearby? Did the police overlook potential witnesses?
Interview witnesses.Don’t rely only on the handwritten witness statements the police give you. Witnesses sometimes are intimidated by the police and might lie. Instead, talk to witnesses yourself.Also talk to witnesses the police didn’t find.
- When you’ve finished talking to the witness, ask them to write out their version of what they told you. Ask them to sign it.
- Have a witness with you—a paralegal, junior attorney, etc. They should initial the statement as a witness.
Negotiate a plea bargain, if possible.Your client might want to take a plea deal to avoid trial. You’ll need to properly prepare and identify your leverage in plea negotiations. For example, in a domestic violence case, the main witness is probably the victim—who might not show up to testify. The prosecutor knows this, so they might be willing to cut a deal.
- It’s your client’s decision whether to accept a plea bargain. You can offer your advice, but it is their decision.
- However, they must make an informed decision. Explain to them the costs of pleading guilty.For example, they might lose their gun rights or their ability to vote.
Bringing Pre-Trial Motions
Ask the court to dismiss the charge.You can bring a pretrial motion to dismiss and win the case without ever having to go to trial. There are many reasons why you can file a motion to dismiss. Be aggressive and push your advantage by raising as many reasons as credibly possible:
- there was no probable cause for the arrest
- the criminal complaint or other charging document is improper
- there is insufficient evidence to prove your client guilty
- a necessary witness is unavailable
- necessary evidence has been lost by the prosecutor
Move to suppress statements.In federal court, if you fail to raise a motion to suppress before trial, then the issue is waived.Your client can’t even make a plain error argument on appeal. Accordingly, take the time to write a motion to suppress any unconstitutional statements or identifications. File your motion with the court before trial.
- For example, any involuntary incriminating statement should be suppressed, as should any statement given without properMirandawarnings.
- Any identification should be suppressed if obtained with an unduly prejudicial lineup or photo array. For example, if your client was the only Korean in a lineup of all whites, then try to suppress the witness identification.
File a motion to exclude any evidence.You can keep evidence out of court if the police didn’t have probable cause to perform a valid search.For example, a police officer might admit that they jumped someone’s fence in order to investigate without a warrant or probable cause.
File motions in limine.A motionin limineis a request for the judge to make a ruling on evidence before trial. Generally, you object to improper evidence when the jury present. However, some evidence is so prejudicial you’ll want to get a ruling to exclude it before trial.
- For example, you’ll want to exclude any testimony about your client’s wealth, gang affiliation, prior bad acts, etc.
- By bringing the motion before trial, you can prevent the prosecutor from even asking the question during trial.
Preparing for Trial
Develop your theory of the case.The state has a theory already. For example, if your client has been charged with murder, the state’s theory might be that your client got into an argument with the victim and stabbed him five times. You need a story to counter the state’s theory.
- For example, you might argue that your client acted in self-defense because the victim also had a knife.
- To be persuasive, your theory must be supported by facts. In the example above, a knife should have been found on the victim or near their body. If you don’t have facts to support your theory, find a different one.
- Another common theory is that the state doesn’t have sufficient evidence to convict. Remember that the state must prove your client guilty beyond a reasonable doubt.A theory of the case might be, “We don’t know what happened, and the state’s evidence is too unreliable to convict.”
Discuss whether your client will testify.A defendant has a Fifth Amendment right not to testify.It’s also their choice. You should talk about the positives and negatives of testifying. You should also assess your client and offer your advice about whether they should testify.
- For example, your client might not speak well or they might anger easily. In these situations, they probably shouldn’t testify because a jury will not find them believable.
- However, your client might be the only witness who can get important information in front of the jury. In that case, you might need to risk having them testify.
Decide what information you need from each witness.You need evidence to support your theory of the case, so identify what information you can get from each witness. Then flesh out what questions you will ask.
- A witness can only testify as to what they personally observed. For example, you can’t have someone testify as to what they heard second-hand.
- Remember to write outlines for each of your witnesses. You can depart from the outline at trial, but you need some sort of roadmap when you get up to question witnesses.
Subpoena witnesses.Don’t assume witnesses will show up at trial. Instead, issue subpoenas and have them served properly. Proper service depends on the court. Remember to serve the subpoenas with plenty of time.
Dress your client in a non-threatening manner.Jurors judge a defendant based on appearance.Assess how your client looks to an average person on the street. Does he have tattoos all over his face and arms? Would he scare a suburban mom? If so, you need to carefully plan how your client will appear.
- Cover tattoos with makeup. You might need to motion the judge for permission to use makeup. Talk to the judge and prosecutor.
- Have your client wear dress pants and a button-up dress shirt or sweater. Clothes should be neat and pressed.
- Avoid flashy jewelry. Your client’s idea of “professional” could differ from yours, so be careful they don’t wear some chunky watch or big earrings.
Defending Your Client at Trial
Deliver an effective opening statement.Your opening statement is your chance to lay out your theory of the case. Identify the witnesses who will testify and what they will testify to.It’s probably best to be as brief as possible. However, the opening statement should be as long as necessary.
- Regardless of the length, get to the point. Open with your theory: “Ladies and gentlemen, this is a case of mistaken identity.”
- Be persuasive—but don’t argue. It’s a fine line you must walk.
Object to inappropriate questions.Objections are critical. Listen closely to the prosecutor’s questions. You want to keep harmful evidence away from the jury. You also want to set up your client for a successful appeal. If you don’t object to evidence, then your client will be limited to plain error review on appeal. Remember to object to the following:
- Hearsay. Review your evidence casebook. Hearsay is an out-of-court statement offered for the truth of the matter asserted.
- Unduly prejudicial testimony. Often, prosecutors will try to tar your client with “guilt by association” evidence. Object to any questions about the criminal history of your client’s family or friends.
- Prior bad acts testimony. Did your burglary client commit a burglary before? If so, expect the state to try and introduce that evidence. Ideally, you anticipated this evidence and filed a motionin limine.
- Confidential information. Watch for the prosecutor to try and get statements out of a spouse, clergy member, doctor, etc. Object to this testimony.
Impeach state witnesses, if necessary.Some state witnesses will have helpful information for you. Others might not really harm your case. However, you’ll need to impeach witnesses who offer testimony that is devastating to your client. For example, someone who claims to have seen your client commit the crime needs to be undermined. You can impeach in several ways:
- Point out the witness couldn’t have seen what they claimed. This is called challenging someone’s “perceptive” abilities. Ask how dark it was or where the person was standing. Highlight whatever was an obstacle to them seeing your client.
- Confront with a prior, inconsistent statement. If the witness said one thing in front of the grand jury and another thing at trial, you can impeach them.
- Raise someone’s felony conviction. If a conviction is recent enough, you may be able to raise it to undermine the witness’ credibility.
Question your witnesses.You will get to present witnesses second. Present them in an order that makes sense. Generally, chronological order is the easiest to understand. As a good rule of thumb, never ask a question you don’t know the answer to.
- Remember to object to inappropriate questions on cross-examination.
- In fact, you should object if you think the defense attorney is getting a good rhythm and undermining your witness.
- Remember that you will have a chance on redirect to try and rehabilitate your witness.
Make a powerful closing argument.Your closing argument is a chance to persuade the jury to accept your interpretation of the facts. Cases can be won or lost during closing argument, so spend plenty of time planning yours. A closing argument should cover the following:
- summary of the evidence—hit the high points and what’s relevant
- reasonable inferences—e.g., the alleged victim didn’t call the police right away because no crime was committed
- emphasis on the holes or gaps in the state’s evidence
- summary of the law the jury needs to apply
- plea for the jury to acquit your client or convict on a lesser charge
File post-trial motions, if necessary.Should your client be convicted, your work isn’t done. You need to set them up for a successful appeal by filing necessary post-trial motions. For example, you may need to file a motion for a new trial in which you argue that prejudicial testimony led to the conviction.
- Post-trial motions are key because, in many states, your client will be limited on appeal to only those arguments you raised in your post-trial brief.
- You’ll need trial transcripts so immediately contact the court reporter. Ask for rush transcripts, which aren’t final but will be good enough.
- Properly research the motion. A good defense attorney will write a compelling brief citing relevant cases. A lazy lawyer will throw some arguments on a piece of paper without any citations.
Bill properly.You should have had your client sign a fee agreement. Remember to bill according to the agreement. Get bills out in a timely manner and give your clients many different options for paying. If you don’t yet have any way for clients to pay with a credit card, then hook yourself up.
- Remember your ethical obligations even when clients refuse to pay. You can’t just stop working on the case. Instead, you must diligently defend your client until you properly terminate the representation.
- If a client refuses to pay, you may need to file a motion with the court asking to be let off the case.
Remember your client’s emotional needs.Criminal defendants feel a range of emotions—almost none of them good. They may feel embarrassed, stressed, and/or afraid.You will need to listen patiently to whatever your client wants to say.
- You may also need to help them find treatment for any mental health or substance abuse issues.
- At the same time, you have to provide “reality checks.” Throw cold water on any unrealistic dreams your client might have, such as hopes that an important state’s witness won’t show up, etc.
Keep your client informed.Your clients probably don’t have much to think about other than their case—especially if they are in jail. You should regularly keep your client informed of what is happening in their case. Ideally, you will visit or call, or you can write a letter.
- Always remind your client to avoid talking about their case to other people.Anything they say can be used against them.
Be a jack-of-all-trades.Your clients have lives outside the jail or courtroom, and you might be the only person they can trust. You aren’t a social worker, and you can’t meet all needs. At the same time, however, you need your clients to be focused on their defense. This means you might need to help them get their lives in order.
- For example, a woman in jail might be a single mom whose children are in state custody as they frantically try to find a temporary home for the children. You might need to call Child Protective Services to find out where the children are and find family who can take them in.
- Your client might be on meds which need to be refilled while they sit in the jail. Don’t expect your client to speak up or for jail personnel to care. You have to care.
Video: What Makes a Good Criminal Defense Attorney?
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