Winning Criminal Defense Tips

By Jason C. Kohlmeyer

Know the Prosecutor

In my opinion, this is one of the first things that must be done in order to get a good result for your client. You will find that many prosecutors have hot button crimes that they take more seriously than other cases, and you might be surprised at what they are. For example, in my area one of the prosecutors was severely injured by a drunk driver years ago. Because of this, I know he will not deal at all on drunk driving. Another prosecutor’s parents run a family business, so she takes check forgery and bouncing checks much more seriously than other prosecutors.

You also need to know if the prosecutor has a reputation for settling cases or for trying them. You will find some prosecutors don’t try cases, while others will try every case. Thus, you need to know who your opponent is before you meet them in the courtroom.

As a new lawyer, you may not know much about the prosecutor. I’ve found that a good way to get the inside scoop is to talk to the public defenders. They certainly will have dealt with the prosecutor many times and are usually happy to help.

Know the Elements of the Crime
When I get a case that involves a crime I’m not extremely familiar with, I review the elements of the crime (jury instructions are great for this) to see whether all the elements are present. Often you’ll discover an element that is needed for a conviction that you didn’t know about.

Also, don’t be too quick to concede any of the elements to the prosecution. For example, if intent is a required element, does your jurisdiction allow you to claim voluntary intoxication as an affirmative defense? You might be surprised how often you can successfully challenge the intent element of a crime because your client was under the influence of alcohol, illegal drugs, or even prescription drugs.

Prepare for Trial in Every Case
I know that in my part of the country (and probably yours), nine out ten cases settle short of trial. However, I prepare as if I’m going to trial for every case I take, whether it’s a simple theft or a complex cocaine distribution case. I’ve seen too many defense lawyers get the reputation for never going to trial. If the prosecutor believes this is the way you operate, you’re sunk.

I’ve found the opposite is also true—if the prosecutor knows you have no problem trying a case that is extremely difficult, he may be more willing to give your client a good deal in order to avoid a lengthy jury trial.

Sentencing Can Be a Trial in Itself
If you’ve done everything you can, and you are still faced with a sentencing, don’t give up! Treat the sentencing as a trial. Call witnesses and present evidence. I’ve found some ways to do this are through the testimony or letters of family members, employers, and sometimes even the victims. I often like to let my evidence “trickle in” over several weeks, rather than inundate the judge with a stack of letters immediately before the hearing. I’ve found this helps to keep the case in the judge’s mind and helps with what your goal is: to persuade the judge that your client is different from all the other defendants she has sentenced that week.

Also, be sure to prepare your client for the sentencing. Spend an hour or two with your client running through exactly what will happen and what he or she will tell the judge to ensure the sentencing goes smoothly.