Over the past year I have won jury trials on cases involving first degree assault and use of a weapon, domestic assault, sexual assault, and felony assault of a police officer. While drug possession cases and interstate drug stop cases are often won or lost at a suppression hearing, most cases involving assault are won or lost at trial.
The key to success at trial, like the key of success in life, is preparation. The preparation an attorney does during the discovery phase of the trial will provide him with the information necessary to develop an effective trial strategy. In developing the trial strategy the attorney must recognize that there are facts that are questionable and there are facts that will not change and must be dealt with accordingly.
If there are facts that must be challenged the lawyer, in his diligent preparation must find ways to effectively challenge those facts. In a criminal case, because the government bears the burden of proving the case beyond a reasonable doubt the attorney must consider ways that the facts have not been or cannot be proven beyond a reasonable doubt.
In facts that will not change and will be proven the attorney needs to consider ways to either mitigate the harm from those facts or use those facts to his advantage. Often, in criminal cases there are bad facts that can be kept out of evidence through motions in limine or motions to suppress. The effective criminal defense attorney must exhaust these methods of excluding evidence. However, even after these methods have been exhausted there will still be certain "bad" facts and "that will get in at trial" and must be dealt with as part of the overarching trial strategy.
In most criminal defense cases the case is won or lost during the cross examination of crucial government witnesses. The defense attorney must be well prepared for the cross examination and must plan a cross examination that will highlight key points. In Nebraska state criminal cases, the defendant may take the deposition of the prosecution's witnesses. The importance of the deposition is that it obtains sworn testimony from the witness that can be used not only in planning the defense, but to attack the witness' credibility at trial if the witness changes his or her story.
Many criminal jury trials are won or lost during the cross examination of the government's key witnesses. It is generally much easier to argue that the government has failed to prove its case beyond a reasonable doubt than for the defense to put on a case. The reason a defense case is difficult, is that often many of the government's witnesses are law enforcement officers or other professional witnesses who have testified in court hundreds of times. Often defense witnesses, other than expert witnesses, have very little, if any experience testifying at court. As expected, the professional witnesses generally testify better than the amateurs.
However, there are times when it is absolutely necessary for the defendant to put on witnesses. Sometimes the defendant should call character witnesses in assault cases. Other times there are alibi witnesses who can show that the defendant could not have committed the crime because he was not present at the time the alleged crime was committed. Sometimes there are witnesses that will testify to contradict the facts of the state's witnesses and create doubt as to the facts that comprise the state's case-in-chief.
Finally there are cases known as the he said/she said case where there are only two witnesses the defendant and the accuser. In these cases, if the accuser has not been adequately discredited through cross examination, it may be in the defendant's best interest to testify. This is the defendant's opportunity to tell his side of the story. However, prior to testifying the defendant must know the pros and cons of both the decision to testify and the decision not to testify.
In some criminal cases the defense attorney has many decisions to make and tools at his disposal. In order to be in the best position to win the case, the attorney must not just be adequately prepared; he must be better prepared than the government's attorney. The defense attorney that knows his case inside and out will not only have a well planned trial strategy but will also be attentive enough to capitalize on mistakes that the government will make at trial.
There is no one way to win a criminal case. Several strategies can be effective when it comes to winning the case.
While there are never any guarantees, an attorney generally cannot win a case that he is not prepared to try. In some cases it is extremely important that the client participates in his own defense. In other cases the client simply provides the resources and the information necessary to assist the attorney in winning the case. In conclusion, jury trials are difficult and expensive. The criminal defense client who seeks to win must provide his attorney with the information and resources that are necessary to put the attorney in the best position possible to win the case for the client.
