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. 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.
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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:. 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:.
Criminal Defense Strategies
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.
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. Some criminal defense lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent indigent persons; the latter are generally called public defenders.
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The terminology is imprecise because each jurisdiction may have different practices with various levels of input from state and federal law or consent decrees. Some jurisdictions use a rotating system of appointments, with judges appointing a private practice attorney or firm for each case.
In the United States , criminal defense lawyers deal with the issues surrounding an arrest , a criminal investigation , criminal charges , sentencing , appeals , and post-trial issues. Often an attorney will specialize in a niche within criminal defense, such as drug defense or DUI defense.
An arrest simply means a police officer, federal agent, or judge believes probable cause exists that a person committed a crime. Since an arrest is usually made by law enforcement, the arrest often is for a criminal charge that has not been levied or verified by an attorney or judge.
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Criminal defense lawyers also deal with the substantive issues of the crimes with which his or her clients are charged. Criminal defense lawyers may also help clients before charges have been filed by a prosecuting attorney. This is done when someone believes he or she is being investigated, or is arrested.
The accused may hire a criminal defense lawyer to help with counsel and representation dealing with police or other investigators, perform his or her own investigation, and at times present exculpatory evidence that negates potential charges by the prosecutor. Criminal defense lawyers in the United States who are employed by governmental entities such as counties , state governments , and the federal government are often referred to as public defenders or court-appointed attorneys. A considerable aspect of this work requires the US criminal defense lawyer to have a clear understanding of the United States Constitution.
Specifically, the Fourth Amendment protects against unlawful searches and seizures, while the Fifth and Sixth Amendments govern the right to remain silent so one does not become a witness against himself. Thus, a criminal defense lawyer must understand each of these rights. Initial work on any criminal case involves review of the charges and the claimed facts, and analysis of constitutional violations, the prima facie burden of the prosecution, defenses, and affirmative defenses ; as well as potential sentence and sentencing issues.
Early stages of a criminal case may involve a grand jury or preliminary hearing to determine if there exists probable cause for the case to continue.
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A violation of the Fourth or Fifth Amendment, or other illegally obtained evidence could result in evidence being inadmissible at trial. Accordingly, a criminal defense lawyer often spends a considerable amount of time reviewing all documentation to determine if the case can be won on constitutional grounds due to illegal conduct by the government. If there are no constitutional violations, much of the work of a criminal defense attorney then turns to trial preparation.
Any proposed settlement agreement must be compared to the best judgment about the outcome after trial. A criminal defense lawyer will usually discuss potential plea bargains with the prosecuting attorney, as an alternative to exercising the defendant's trial right and other rights. Plea agreements, when made, can be characterized as either charge agreements often involving a less serious charge , sentencing agreements involving a lesser sentence , or both.
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