The best strategies for your case need to be specifically tailored to the facts and circumstances involving you. There are some general rules but you are interested in winning your case, restoring your freedom and having this come at as little cost as possible to you and your family. You must work closely with your lawyer to implement a strategy designed to win. Although one strategy does not fit every case, it is important to consider the following guidelines:
A good, early investigation is essential to any criminal defense. Witnesses need to be interviewed when memories are fresh. Crime scenes should be visited immediately to discover the location of objects, and the perspective of witnesses. The importance of visiting the crime scene cannot be overstated. Any attorney worth his salt will visit the crime scene of any case he is seriously defending against. This should be done early and perhaps several times.
One of the most powerful tools of the criminal defense lawyer is the subpoena duces tecum. Each of us in our lifetime generates an enormous amount of information that is available through public agencies, credit reports, real estate transactions, contact with the police, medical providers, school and education records, job reports, etc. These are frequent sources of information that can be used to help a person in their defense and attack the credibility of prosecution witnesses.
One very important and often overlooked avenue of discovery is to view all the physical evidence seized by the police. I do this in every case in which physical evidence has been gathered. I always find this to be helpful. I can get insights into a case and generate ideas about how to fight the case.
Learning about a criminal case is a proactive process. All prosecution witnesses need to be interviewed by the defense investigator.
2. Plea bargaining and common myths.
Good criminal defense lawyers should consider themselves criminal trial attorneys. However, even the best criminal trial lawyers settle far more cases than those they try. A very important fact of life is what is called plea bargain leverage. In the past thirty plus years, sentencing laws have gotten extremely tough. It is often the case that the District Attorney can make a case far worse than what is the original offer to settle, if there are uncharged priors, uncharged counts, or additional victims or evidence that can come forward. It is important for your attorney to investigate your case quickly and thoroughly to get a detailed understanding as to whether any particular plea offer is worth taking. Some common myths of plea negotiations include:
A. Jailhouse lawyers tell people not to take the first offer. That it will get better. The offer will get better if the case falls apart on the D.A. If on the other hand, the D.A. files enhancements, finds other victims, finds strikes or other priors, the offer will get worse and worse and worse.
B. If the D.A. makes a low offer he knows how weak the case is and will dismiss it if I won’t take the offer. The answer is maybe so. Things may also get a lot worse. Consider the answer above.
C. The D.A. will not spend the money to take the case to trial. The D.A. loves spending money. The more they spend, the more they can ask for from the county. Most of the time money is not a consideration.
D. The D.A. can’t prosecute the case because the victim does not want to press charges. Many unwilling victims are forced to come to court and testify against their will. The D.A., not the victim, decides to press charges. If the victim is totally uncooperative that may help resolve your case, but cops and D.A.’s sometimes use all sorts of threats to get people to testify. Victims are sometimes told CPS will come and take their children away if they do not cooperate. Victims have been threatened with prosecution. If people don’t show up in court, the judge will issue a warrant for their arrest. If someone refuses to testify they risk being held in contempt, and put in jail or fined until they testify. Even if the person refuses to take the oath and says nothing else, that may not keep them from being harassed in other ways. Such a person would be advised to seek legal counsel.
E. It is my word against his or hers. The jury won’t convict me on such flimsy evidence. The law says that the testimony of a single witness, if believed by the jury is sufficient to convict. Jurors can be very trusting of the government. People do get convicted on the testimony of a single witness. Before you reject an offer, review your case thoroughly. What is the evidence against you? Make a list. What are your defenses? Make a list. What is the risk of going to trial? Consult with your lawyer. Taking a deal or going to trial are decisions made by the client. The lawyer has a duty to give the best advice, so don’t get mad at him about the advice.
3. Defense witnesses at the preliminary hearing.
Should defense witnesses testify at the preliminary hearing? Most of the time they should not. The judge is not likely to dismiss the case no matter how much evidence the defense presents. Calling witnesses to a preliminary hearing will only show the D.A. who the defense witnesses are, give a chance for him to cross examine them, and give the D.A. plenty of time to harass your witness, dig dirt on them, or even prosecute them. Prosecution witnesses are another matter. The defense cannot call them unless they have exculpatory statements to give. The report should be studied carefully to see if there isn’t something exculpatory that will justify calling the witness. Any opportunity to call witnesses should be considered. There is an upside and a downside to everything. All aspects of your case should be considered and decisions should be made on what appears best for you. Your input should be sought on these decisions.
4. Motions to suppress at the preliminary hearing.
Should a motion to suppress evidence be brought up at the preliminary hearing? This is another question that doesn’t have definite answers. If you lose the issue, you can have it reviewed with a PC 995 motion and file another 1538.5 motion without calling additional witnesses. If you elect to wait, you can file the motion after the preliminary hearing and have a special hearing where you are entitled to call witnesses. If the motions to suppress is strong and you expect the judge will not rule accordingly, you should be prepared to file a writ with an appellate court to review the judge’s findings. There are strict timelines that must be followed in order to preserve your right to file a writ petition. Your attorney should be familiar with these rules and timelines.
5. Other motions practice.
You can expect several motions will be made through the course of your case. Pitchess motions seek disclosure of information about persons who complained of police misconduct. Motions to traverse a search warrant challenge the underlying basis for obtaining a search warrant, and a motion to quash seeks to compel suppression of anything obtained from the warrant. In limine motions are filed before and during the course of a trial to clarify and ask for limitations on the evidence that will be presented during the trial. There are motions to compel identification lineups, and to ask the court to dismiss prior convictions or strikes. A motion to compel discovery is often used to force a D.A. to give up information he does not think he is required to disclose. There are many other issues that can brought before the court through vigorous filings. Motions practice is complex and your attorney should aggressively assert your rights through this process.
6. The jury trial. Should you hire a private attorney to take your case to the preliminary hearing if you don’t have the money for representation through trial?
I don’t think so. It’s rare that you will get the case dismissed at the preliminary hearing and the strongest motive for the preliminary hearing is to prepare for trial. It is best to have the attorney who is going to do the trial do the preliminary hearing. After the preliminary hearing and you have been arraigned of the information you have a right to trial within sixty calendar days unless there is good cause to continue the case or you waive your right. You should always confer with your attorney before you relinquish your speedy trial rights. Preparations for trial begin the very first time that the defendant and defense counsel meet. From the initial interview possible defenses to the case should be considered. Work done on the case after the first meeting should be aimed at putting the defense together. Legal research is frequently required to know what kind of defenses are possible. This should be done at the very early stages of the proceeding.
7. Should you testify?
While it is true that you, or anyone accused of a crime is presumed innocent, most people in the community will want to hear your story, your side of the case. The judge may instruct the jury many times during the course of the trial not to infer guilt because the defendant fails to testify. However, as a practical matter, most jurors will have in their minds, “if he is not guilty what does he have to hide?” If the defendant testifies and is not totally discredited on cross examination, the jurors may find an issue which has created reasonable doubt. This is not to say a defendant should testify in every case. You should consult with your attorney. You should know that the jury wants you to testify. This is a decision made, not by the attorney but by the person accused of the crime. It is your right to testify. It is a good time to tell your story. Overall, this decision should be made with careful consideration, and with advise from your trusted lawyer.