Criminal Defense Strategies

Criminal defense attorneys help clients navigate their legal issues, suggest options in light of the facts of their case, and recommend strategies for those accused of a crime.

Criminal defense attorneys help their clients develop a criminal defense strategy to use for their criminal case, whether it's for charges related to DUI or any other charges. Criminal defense lawyers begin strategizing after their clients retain them through a signed representation agreement.

Once the agreement is in place, the lawyer will examine the evidence, including the police report, to better understand the criminal charges. In doing so, they will investigate whether there was probable cause for the arrest.

 They may also discuss various types of defenses applicable to the case. Ultimately, however, the client makes the final decisions in their case, such as:

  • What they will plead (guilty, not guilty, or nolo contendere)
  • If they will testify in court
  • If they will take a plea bargain

While these decisions are up to the defendant, a criminal defense attorney will provide legal counsel to obtain the best possible outcome. Sound legal counsel is crucial in raising reasonable doubt about the prosecution's case. This could lead to acquittal and—perhaps—a clean criminal record.

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 create two completely different stories with the same factual events. Think of this as you would think of a map of the United States. In one map, the states are depicted in their geographic areas with the state borders in dark lines. However, the other map 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 create the best story possible for the defendant's situation. The end story should have characteristics such 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.
  • 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, show why the defendant wasn't there.

Creating a Criminal Defense Strategy

The criminal defendant will retain an attorney, or they will be appointed an attorney by the court under the U.S. Constitution's Sixth Amendment right to counsel. The criminal defendant will then tell their story to the criminal defense attorney.

Formulating a defense case isn't as simple as telling the truth in a way that shows the defendant's innocence or lessens legal culpability. Instead, it often involves:

  • Reviewing the police report
  • Weighing witnesses' credibility
  • Determining the applicable statute of limitations on the crime charged

All these considerations will go into making a theory of the case based on the defendant's story and other provable facts.

Any information given to the attorney by the client will be protected by the attorney-client privilege.

Attorney-Client Privilege

When you consult with an attorney, you are 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. This means that if you tell your attorney about your legal issue, this information is confidential.

Generally, this privilege creates honest, truthful communication between clients and their attorneys. Privileged information helps criminal defense attorneys form a criminal defense strategy in the best interest of their clients.

There are some exceptions to attorney-client privilege, such as preventing death or substantial harm.

Common Criminal Defense Strategies

Once criminal defense attorneys hear their client's side of the story, they begin working on how to best represent their client. This depends on the facts of each individual case. Here are some common strategies criminal defense attorneys use to challenge the prosecution's case:

  • Innocent: A client may maintain that they are actually innocent. The attorney will develop a strategy that proves it to the judge or jury.
  • The Alibi Defense: The client says they have an alibi. An alibi is evidence that the defendant was elsewhere when the crime occurred. A strong alibi can be an extremely powerful defense tool, showing that it was impossible for the defendant to commit the crime. Reliable witnesses, video footage, or other evidence showing the defendant's location during the crime can bolster this defense.
  • Self-Defense: This strategy maintains that the defendant committed an alleged act out of a need to protect themselves or others. To successfully argue self-defense, the attorney must show that the defendant had a reasonable fear of imminent harm and used an appropriate level of force in response.
  • Entrapment: Entrapment occurs when law enforcement induces a person to commit a crime that they would not otherwise have committed. The defense aims to show that government agents improperly enticed or coerced the defendant into committing the crime.
  • Constitutional Rights Violations: Criminal charges can be challenged if they're based on evidence obtained through unconstitutional means, such as an illegal search or seizure. This defense often involves a motion to suppress the evidence. The attorney argues that the information was obtained in violation of the defendant's Fourth Amendment rights. If a review of the police report indicates a lack of probable cause for a search or seizure, the report can be a valuable piece of evidence for the defense.
  • The "Lesser Included Offense" Strategy: In some cases, defense attorneys aim to convince the jury that the defendant is guilty of a lesser included offense rather than the more serious charge. This strategy concedes some level of guilt but attempts to reduce the severity of the punishment. For example, in a robbery case, the lesser included offense might be theft because robbery involves theft. But it also includes the additional element of force or threat. If the defendant is convicted of the lesser included offense and not the more serious crime, they will face a shorter sentence.
  • The Insanity Defense: The insanity defense is used sparingly and is difficult to prove. This defense asserts that the defendant was mentally incapable of understanding the nature of their actions or distinguishing right from wrong at the time of the crime.

In many situations, a criminal defense attorney might also:

  • Prepare a defendant who chooses to testify through mock interviews
  • Bring defendants to important crime scenes to stimulate memories
  • Get defendants to write down the 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's attorney could tell him:

Dennis, you're being charged with conspiracy to commit armed robbery. This means you're being charged with planning with at least one other person) to commit armed robbery. It also means you have taken steps to achieve this goal. In speaking with the assistant district attorney about your case, I now know they plan on showing that you purchased a gun after talking with Frank and George. They claim that you talked with Frank and George to plan the armed robbery. They also claim 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 Dennis 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.

It's sometimes forgotten that criminal defendants are innocent until proven guilty. Under almost all criminal law statutes, the burden of proof is on prosecutors to prove that you are guilty. Defendants are not tasked with proving their innocence.

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 another attorney may represent you on appeal, these actions better your chances of winning on appeal.

Learn More About Legal Defenses From an Attorney

The criminal justice system can be challenging. Being charged with a criminal offense, whether misdemeanor or felony, can have serious consequences. Several criminal defense strategies may be available to you, depending on the facts and the criminal charges. Whether you hope to plead to a “lesser included charge" or completely deny the allegations, a criminal defense attorney can provide legal advice. This advice can include what defenses should be raised in your criminal case and what your best defense should be.

Start learning more today by contacting an experienced criminal defense lawyer near you.

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