FindLaw has created a good summary of how criminal defense strategies develop between attorney and client. The following is excerpted from here.
A criminal defense strategy for your criminal prosecution will emerge as your criminal defense attorney finds out more about what the prosecutor plans to do in your case. If a prosecutor 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. Additionally, how the criminal defendant acts and answers questions that the prosecutor poses can also change the criminal defense strategy.
The best criminal defense strategy comes when the defendant and the defense attorney present a story that is based in truth and shows the defendant in the best light possible. Depicting a story in a better light could lead to a plea bargain, conviction on a lesser charge, or even a finding of not guilty.
Criminal Defense: The “Truth”
A prosecutor and a defense attorney can both use the same foundation of factual events and come up with two completely different stories. 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.
It’s up to the 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. For example, if the defendant’s car was being used as a getaway car, show that the defendant’s car was stolen from them at gunpoint the morning of the crime.
- Having the ability to gain sympathy from the judge or the jury. For instance, 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 wasn’t there.
Denials and Admissions of Guilt
It’s 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 their 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. 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 their story to their criminal defense attorney, they will probably collaborate to come up with a strategy that will work best. Coming up with a defense strategy isn’t 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. 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.
Suppose that a criminal defendant has been charged with burglary. The defendant goes to an attorney’s office and tells their story, which they also confessed to the police after being arrested. Apparently, the man was identified by an eyewitness shortly after the burglary took place. The witness isn’t 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 didn’t take part in the execution of the crime, but he went along so that his friends wouldn’t think less of him. Additionally, when the defendant was arrested, the police didn’t inform the defendant of their right to be silent or the right to have an attorney present when questioned.
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.
The defense attorney would probably file a pre-trial 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 a 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. 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.
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.
Defense attorneys should tell clients 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’re being charged with conspiracy to commit armed robbery. This means that you’re 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?”
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 didn’t participate in the discussed armed robbery. Then, the purchase of the gun wouldn’t be in furtherance of the crime.