American Bar Association
General Practice, Solo, and Small Firm Division

The Compleat Lawyer


Summer 1997 copyright American Bar Association. All rights reserved.

Defending a Criminal Case

BY ALLEN B. BICKART

Allen B. Bickart has practiced as a solo practitioner in Phoenix, Arizona, for 40 years. He is a bar certified criminal specialist of the State Bar of Arizona and a member of the ABA Section of Criminal Justice.

You have taken the quantum leap and decided to represent an individual charged with a felony offense. All efforts at plea negotiations have failed, either because the prosecutor is unwilling to dispose of the case with a favorable outcome for your client, or because your client is adamant that he or she is not guilty of the offenses charges.

It is at this point that you should reach for the Supreme Court Reporter that contains the case of Strickland v. Washington (466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2nd 674 (1984)). Read it and ask yourself honestly whether you possess the necessary trial skills to be able to defend this person. You don't need the experience of many jury trials to feel a degree of confidence. What you do need, however, is a great familiarity with your local rules, knowledge of the law as it applies to the charges involved, an honest relationship with your client, an evaluation of your judge, and an understanding of the dynamics of the jury process. Armed with the foregoing, you are hopefully prepared to go into battle in the criminal arena.

Examine the Paperwork

At the start of a criminal case, the defense lawyer is provided with the charging document - reports prepared by the police agency (the city police department, county police, highway patrol, or federal agencies). These reports should be scrutinized with great care, for often they contain assumptions that an experienced trial lawyer can exploit for the defense.

The maxim in criminal law is never assume. Start at the beginning of the documentation, be it the grand jury trial transcript (if you are fortunate to practice in a jurisdiction that entitles you to obtain the transcript) or any other information, and determine by independent investigation whether the state's case is predicated upon an assumption that may be false. If this is the case, then that erroneous assumption may be the fatal flaw that becomes the Achilles' heel of the prosecution.

Wherever you practice, the mission of the defense lawyer is to obtain all of the facts from either the client or the witnesses. Like a good physician, a good trial lawyer takes a very complete history from his or her client.

Diagnostic History

This history should contain all of the material about your client, such as his or her education, ability to understand, mental capacity, state of mind at the time of the event charged, and recollections of events. Obtain from the client a chronological overview of all the events leading up to the incident that has brought the client into your office or into jail. The accuracy of this chronology is dependent upon your ability to have a heart-to-heart talk with your client about the necessity of being truthful and forthright with you in the facts.

It is often suggested that you tell the client that it is unwise to mislead the defense lawyer just the same as it is unwise to mislead a physician in the treatment of a medical condition or an accountant in the handling of your financial affairs. If you detect reticence on the part of your client in being forthright with respect to the events charged, examine the source behind the reticence to determine whether your client is being intimidated by co-defendants, is afraid of repercussions from other individuals not charged, or is unwilling to "rat" on somebody else. An interesting development in the criminal defense practice these days is the frequency with which "rats" often turn on your clients. Thus, you must explain to your client his or her vulnerability from others charged with offenses. This may convince your client to tell you the complete truth about the events that occurred.

If the event is not in an isolated incident of aberrant behavior or an accidental arrest by virtue of a traffic stop and subsequent search, it may be necessary for you to create a timeline. As evident by the recent Simpson trial, timelines often vary based upon interpretation. The prosecution may have its own timeline, the defense another version. The full and complete history provided by your client is the essential beginning to a criminal defense.

It may appear that your client is suffering from some type of mental disorder such as bipolar disorder, manic depression, schizophrenia, or other mental disabilities. You can discover this in the history stage by asking about medications taken by your client, hospitalizations, or any other treatment given by a physician or psychiatrist. A mentally deficient defendant is generally rather obvious to the trial lawyer. If you discover in your history-taking stage that your client is unable to provide you with any coherent history of events, then your first task is to undertake a proceeding in court to test his or her mental capacity to stand trial. Every jurisdiction has such a mechanism, and most jurisdictions still determine competency based upon the McNaughton Rule. The more enlightened jurisdictions have diminished capacity, which is a lesser standard of competency, but nevertheless it is your obligation to pursue this possibility before anything else is done in the case. You also need to consider the possibility that your client will not be able to assist you at all stages of the proceedings.

Once you have your basic and complete history, then use the timeline to examine the events and determine if some law has been violated. Look for illegal search and seizure, improper entry into residences without knock and announce, inappropriate procedures utilized in the identification of your client, or an effort on the part of the officers to stretch the facts to justify their actions.

If there is a question of the validity of the search or seizure of anything belonging to your client, whether it is a slim issue, file a motion to suppress in every case. Whether or not you believe you will win is immaterial. Do it for the purpose of preserving the record. Request an evidentiary hearing and probe the circumstances under which the officers obtained the necessary information in their affidavit to obtain the search warrant. All too often, in their efforts to ferret out crime, police officers will bootstrap information in a manner to justify the issuance of a warrant. The execution of the warrant is likewise important. The facts surrounding that issue should be examined carefully.

A warrantless search presents a whole new area of law. Was the search incident to a lawful arrest? Remember the recent cases of the Supreme Court, such as Whren (116 S.Ct. 1769, 135 L.Ed. 2d 89 (1996)) and Bostick v. Florida (501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). Traffic stops can be made based upon sham traffic violations. Luggage can be searched based upon general policy. Underlying it all are the principals of Terry v. Alabama (392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) and the factual circumstances surrounding any warrantless search - whether the circumstances were exigent or the dynamics of the facts were such that time did not permit the obtaining of a written warrant. Many jurisdictions have telephonic warrants. In motions to suppress, use the timeline to question why they did not get at least a telephonic warrant. But in each case involving a search question, file the motion to suppress merely to preserve the record.

The Charging Document

The charging document should be carefully examined to determine whether the offenses charged are correctly set forth in the indictment and/or information. In the case of a unique statute, the constitutionality of which has never been tested, it is always wise to make a determination of whether a motion directed to the constitutionality of the statute would be appropriate. If there is a question of whether the statute has ever been tested based upon your research, by all means bring the motion. Remember, a record is being made. It is often said that winning at trial by preparing to lose is a trial technique. A recent article by Natman Schaye in The Champion (National Association of Criminal Defense Lawyers, March 1997) discusses the successful defense of a criminal case and creates themes upon which cases are tried, keeping certain issues for appellate postures.

Developing a Theory of Defense

In order to sufficiently develop a theory of defense, a good trial lawyer must anticipate what the prosecution will present - both witnesses and evidence. As you read the reports that have been provided, you will see that investigating officers are often the only witnesses the state plan to call. On occasion, however, there are material witnesses whose interviews are required. Keep in mind such issues as identification; ability to see the events occurring; and any bias, motive, or prejudice that a witness may have.

You have to be prepared to be at war with the prosecutor once you set foot in the courtroom. There is no "nice guy" approach to the trial of a criminal case. That does not mean you have to abandon your civility and your professional attitude toward the trial of a case, and in particular, to the court. All too often, however, we find ourselves before judges who are either pro-prosecution or enamored with their own sense of their legal skills. To be deferential to such a judge is often a very good tactic in front of a jury. You can respond to a judge who has made a comment either by making an objection or by asking the court's indulgence in permitting you to go forward in an effort to obtain a fair and complete picture on behalf of your client.

Litigating as a Solo

In the defense of a criminal case, there is little or no difference whether you are a sole practitioner or a member of a medium or large firm. The only significant difference: Medium- or large-firm practitioners have at their disposal the coverage, research, resources, and opinions of other lawyers, who may provide input that would assist in the defense of the case.

Most criminal defense lawyers are sole practitioners. Many solo practitioners have either been in prosecutorial positions or offices of the public defender and have had sufficient experience to recognize a defensible case from an indefensible case. The nuts and bolts of how to proceed in trial begin before trial. As wise trial lawyers have often said, "A trial is won in the office and not in the courtroom." This holds true for all lawyers, regardless of the size of their firm. Once you have evaluated the prosecution's case, you can begin the theory of defense. The theory of defense is essentially filling the gaps in the prosecution's case to enable a jury to hear the entire version of what occurred.

The next question is to assess the state's evidence that may be irrelevant and/or prejudicial under Rule 403 of the Rules of Evidence. If you make such a determination, be prepared to utilize a motion in limine in advance of the commencement of the trial. A good reference is Uncharged Misconduct Evidence by Professor Imwinkelried (Clark Boardman, updated annually), which deals with Rule 404(b).

Trial Notebook

Prepare a trial notebook before the trial, starting with an index of the charging document, a preliminary hearing or grand jury transcript, police reports, witness interviews that have been transcribed and reported, and your proposed jury instructions. If you have exhausted all of your motions - motions to dismiss, motions to determine the mental capacity of your client, motions to suppress, motions to sever, motions for additional production of Brady material ( Brady v. Maryland, 373, U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)) - then you are prepared for the commencement of the trial.

Sit back and think about your case. Try and envision the type of juror you wish to have on the case you are about to try. Is your appeal to the jury emotional? If it is, then do not consider accountants, engineers, computer analysts, or statisticians for the jury. These people tend to be "data in, data out" in their deliberations. But these people can be a great asset on a jury if your case is dependent upon a finely tuned timeline or scientific evidence that needs some analysis on the part of the jury. Generally, retired individuals are more firmly fixed in their views toward the criminal justice system.

Shoot for the middle range - people of a certain age, who belong to a two-income family, are trying to raise or educate their children, and are gravely concerned about the crime problem in America today. Do not overlook your visceral impression of a particular juror. But do not deceive yourself into believing that a juror who is friendly and smiles at you is necessarily going to be on your side of the case. That juror may very well just like the suit or dress that you're wearing that day, or identify with you in some other fashion.

Be mindful of your Batson objections ( Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)), and make sure that if you have a genuine Batson motion, have a hearing where you require the prosecution to articulate the particular reasons for striking a given juror. Whether your objection is sustained and the juror is permitted to sit will be based upon your ability to finesse the prosecution into articulating these reasons in an improper fashion.

Trial Conduct

Once the jury is sworn in and seated for the trial, and in most jurisdictions when the first witness is sworn in, your client is now in jeopardy. If at this juncture there are any double jeopardy issues, this is the appropriate time to raise them.

Depending upon the length and complexity of your trial, generally an opening statement should be given to the jury at the beginning of the case following the state's opening statement. If the case is complex and is likely to be lengthy, and it will be a long time before the jury can focus in on your theory of the case, it might be wise to defer the opening statement to the commencement of the defense case. However, statistical surveys have revealed that jurors do retain and are influenced by what lawyers say in opening statements. In cases that are likely to last two weeks or less, it is a good practice to make a dynamic, theatrical (or low-key, as the case may dictate) opening statement to the jury, leaving them with something to consider during the testimony that is being presented to them.

Do not promise anything in opening statement that you know you cannot provide. Do not tell the jury that your client will tell them about what happened that night if you and your client have not made the decision of whether the client will testify. If there are alternative ways to get the material in front of the jury, be sure to allude to the topic rather than stating that the proof will come from the mouth of your client.

If you find major inconsistencies in the statements of the prosecution's witnesses during pretrial discovery, the opening statement is an appropriate forum to comment on this. This places prosecutors in a very untenable position. They must live with the inconsistencies or face the possibility of the jury concluding that the prosecution has prepared its witnesses so well that they will gloss over the inconsistencies. On cross-examination of a material and major witness, always inquire about the amount of time spent by the prosecutor in preparing the witness to testify at trial. In the case of an informant or a "rat," in opening statement allude to the witness who has acted for payment or has agreed to testify for the magnificent and wonderful walk out of the back door of the courtroom.

It is often wise to prepare an outline of your closing statement before the trial starts. This gives you an overview of your theory of defense and the prosecution's theory of prosecution. During the course of the trial, you can embellish on your outline, adapting it to the evidence. Whether you practice in a large or a small city, never engage in conversation relating to objections or discussions about the case with the court without the presence of the court reporter.

All too often, judges will try to expedite matters by having you reserve the reasons for certain objections until the end of the trial day. Strenuously object to this procedure. For every sidebar conference, have the court reporter present. Make your record carefully, clearly, and understandably, so that if your client is convicted, a reviewing court can see that you did your job within the meaning of Strickland.

When the prosecution's case has rested, make your motion for directed verdict as complete as you possibly can, articulating all of the legal and factual reasons for the record. Remember, the court is acting either as the ninth or thirteenth juror and can test matters of law on a motion for directed verdict. The court can also test the sufficiency of the evidence. At the conclusion of the case, remember to renew the motion for directed verdict of acquittal; if you do not, you will have committed a plain error.

Be sure at the conclusion of the case that all of your exhibits are marked and entered into evidence, keeping track of them at all times. If you have casually drawn a diagram of a scene on the easel, have it marked and move for its admission as evidence. Jurors often make judgments based upon these casual drawings, so you want them in the jury room with the jury.

Above all, be professional. Try to express yourself in a fashion and manner that the jury can identify with. Before the trial, whatever your degree of trial experience, ask the opinion of fellow lawyers either to test a theory you may have or to seek the advice of the best way to present your client's defense.

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