April 02, 2019

The Criminal Defense Attorney’s Burden

Ion Meyn

All too often, criminal defense attorneys rest their case and await a favorable verdict—confident that they have rendered a critical state witness unbelievable—only to lose. Why? Unfortunately for these defense attorneys, undermining the credibility of a critical witness is not sufficient to prevail. True, the prosecutor has the burden of proof, but both parties have a more important burden: a good story. Parties must tear down, but they must also create. In the absence of an alternative explanation presented on behalf of the defendant, the jury gravitates toward the only story, the state’s. A persuasive counter-narrative has essential elements. It provides a compelling explanation for what happened. It has factual integrity. And it supports cognizable defenses: Someone else did it, the defendant has an alibi or an affirmative defense, the police conducted a flawed investigation, or no crime actually occurred. However innocent or wrongfully charged, a defendant without a counter-narrative will lose.

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