Building the Persuasive Case Begins With Getting the Facts
How can a criminal defense client get involved in building the persuasive case? That’s the defense lawyer’s job, right? Remarkably, clients actively involved in their own case development are most often the happiest clients. Earlier this month, and in the first post in this series on building the persuasive case, we focused on attorney credibility in the courtroom. The next area to explore is fact gathering. Next time we’ll look at developing legal theories and brainstorming for ideas.
Factual material should be gathered from every possible source within the economic limits of the case. Clients are the major source of information. Beyond this, an independent investigation should be conducted by the criminal attorney. We are talking about interviewing key witnesses and sometimes using a private investigator hired-on to the defense team. The defense lawyer should always discuss the utility of hiring an investigator during the initial client interview to help the client prepare for possible incurred expenses.
The crime scene should be visited. ALWAYS! This includes the time of day of the alleged incident. Plan on taking photographs, preferably digital photographs which can be downloaded onto a computer and organized using an appropriate image viewing program. Physical measurements of the scene should be obtained depending upon the defense strategy. Sometimes preparing a scaled diagram of the area is important. Observe lighting conditions, traffic patterns, and movements of people in the area.
Develop a discovery plan. In other words, what information do you need from the prosecutor to develop the case? What photos or video do the police possess? What physical evidence was collected? (Amazingly, so few lawyers even inspect the physical evidence when preparing for trial). Often prosecutors will provide informal discovery if they believe the defense lawyer is working towards a resolution of the case in good faith, even if the prosecutors have a closed file policy.
Always get the police photos. ALWAYS! View the police video. ALWAYS! Criminal cases are often dismissed when prosecutors realize the video did not quite match what the police report says. Get copies of recorded audio and listen to it. AlWAYS!
What kind of relevant documents exist? Search warrant affidavits; probable cause statements; accident reports; and other public information. Medical records; hospital records; MHMR records; school records; and public records pertaining to the client, alleged victim, and witnesses. Obtain information and standards from governmental organizations via subpoena or open records requests. Locate police training manuals, standards documents, etc. For instance, field sobriety testing manuals are commonly used to develop an attack upon a police officer’s administration of DWI sobriety tests.
Once factual materials are gathered experts may be needed to evaluate it. Forensic experts, psychologists, fingerprint experts, or others pertinent to the case. Maybe a toxicology expert in a DWI case. Certainly, a computer forensic expert in a child pornography case. DNA experts when the State is using biological evidence. Ballistics, blood splatter, and list goes on. The possible expenses involved with hiring experts should also be discussed with the client at the initial interview.
Once the facts are collected the criminal defense lawyer can begin to decide upon applicable legal theories and brainstorming for ideas. Those topics will be next when we return to building the persuasive case.