Criminal defense attorneys help their client (the defendant) develop a criminal defense strategy to use for the entirety of their criminal case. Criminal defense attorneys begin strategizing after they are retained by their clients through a signed representation agreement.
Criminal defense attorneys will help the client navigate their legal issue, suggest options in light of the facts of their case, and recommend strategies for their clients. Ultimately, however, the client makes the final decisions of their case, such as what they will plead (guilty, not guilty, or nolo contendere), if they will testify in court, or if they will take a plea bargain. These decisions are the defendant's to make; but, a criminal defense attorney will provide help and guidance throughout these decisions.
This article discusses criminal defense strategies that a criminal defense attorney might suggest in a criminal case.
Criminal Defense: An Overview
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. 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 on 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:
- Being based on a truthful foundation of evidence. For example, if the defendant's car was being used as a getaway car, show that the defendant's car was stolen from them at gunpoint the morning of the crime.
- Having the ability to gain sympathy from the judge or the jury through emotional appeal. For instance, if possible, show that the defendant tried to withdraw from a crime before it was committed and even went as far as reporting the potential crime to the police in an attempt to prevent the crime from occurring.
- Explaining and proving why the events that occurred in the defendant's story were the actual events. For example, if the defendant claims not to have been at the crime scene when the crime occurred, the defendant's story must show why the defendant wasn't there.
A criminal defense attorney also might help the client consider options regarding lesser included offenses, which are crimes included in the commission of another crime with more criminal liability. If the defendant is convicted of the lesser included offense, and not the more serious crime, they will face lesser sentencing.
Creating a Criminal Defense Strategy
The criminal defendant will retain an attorney through a representation agreement, or they will be appointed one by the court under the Sixth Amendment right to counsel. The criminal defendant will then tell their story to the criminal defense attorney.
Developing a criminal defense strategy isn't as simple as telling the truth in a way that shows the defendant's innocence or lessens legal culpability. Instead, it will often involve weighing witnesses' credibility, and figuring out their reputations between the community and the police. All of these considerations will go into making a "theory of the case" that will be based on the defendant's story as well as other provable facts.
Any information given to the attorney by the client will be protected by attorney-client privilege, regardless of whether it was written or said.
When you retain an attorney through a representation agreement, you will be entitled to attorney-client privilege. This privilege protects any oral or written communication between an attorney and their client. These communications are protected from required disclosure, meaning that if you tell your attorney about your legal issue, this information is confidential.
There are some exceptions to the scope of attorney-client privilege, such as to prevent certain death or substantial harm. Generally, however, this privilege exists to foster honest, truthful communications between clients and their attorneys without facing concerns over other parties obtaining the information. This privileged information helps criminal defense attorneys form a criminal defense strategy in the best interest of their clients.
Preparing for Trial
Once criminal defense attorneys hear their clients' side of the story, they will begin strategizing how to best represent their clients. This depends on the facts of each individual case. The defendant will need to choose what they will plead in court.
A client may maintain that they are actually innocent, and the attorney will need to develop a strategy that proves it to the judge or jury. Or, the client maintains an alibi (a defense of having been somewhere other than where the crime was committed), and the attorney will need to develop a strategy that proves it. The client may also admit to the crime, but assert a defense to their actions, such as self-defense. The attorney will need to try and gather sufficient evidence to convince the judge or jury of the client's claim.
In many situations, a criminal defense attorney might also:
- If the defendant chooses to testify, prepare them by using mock interviews in order to get the defense theory to memory;
- Bring defendants to important crime scenes to stimulate memories; and
- Get defendants to write down the version of events as seen from their point of view.
Defense attorneys will also inform clients 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. Dennis' attorney could tell him:
"Dennis, you're being charged with conspiracy to commit armed robbery. This means that you're being charged with planning with at least one other person to commit armed robbery and have taken steps to achieve this goal. In speaking with the assistant district attorney about your case, I now know that they plan on showing that you purchased a gun after talking with Frank and George. They claim that your talk with Frank and George was to plan the armed robbery and that your purchase of the gun was in furtherance of this crime. Now, do you have anything to tell me about your purchase of the gun or your talk with Frank and George?"
Suppose Daniel has this information. Since he has it, he will be in a better position to give the defense attorney the story that explains the gun purchase. For example, Dennis could have bought the gun to defend himself from Frank and George, who said they would hurt him if he didn't participate in the discussed armed robbery. Then, the purchase of the gun wouldn't be in furtherance of the crime.
Preserving Your Case for Appeal
Defense attorneys should also preserve their clients' cases for appeal. This means that a good defense attorney will make the right objections and arguments in the oral and written records so that an appellate court can review the case later. While they may not be your attorney in the appeal (you will most likely need to re-retain your attorney through a separate and new representation agreement), these preservative actions help better your chances of winning an appeal later on. These objections and arguments may be part of your long-term criminal defense strategy with your criminal defense attorney.
Learn More About Legal Defenses from an Attorney
There are various criminal defense strategies that may be available to you depending on the nature of your case and the individual facts. Whether you hope to plead "truth" or completely deny the allegations, a criminal defense attorney will be able to best explain all your options and what defenses may be raised in your case.
Start learning more today by contacting an experienced criminal defense lawyer near you.