Taking the Initiative

In our criminal justice system, a criminal case typically begins with the defendant being arrested by the police. The police then submit their reports and evidence to the prosecutor, who makes the final determination of what charges to pursue in court. The prosecution bears the burden of proving guilt to a jury beyond a reasonable doubt. So, should a defendant’s attorney simply lay back and prepare for trial, hoping to convince the jury of reasonable doubt?
This approach is sometimes the best choice under the individual circumstances of the case. However, my experience has shown the power of proactive criminal defense in certain cases. It is not uncommon for the prosecution in a serious case to have failed to carefully review all their evidence before committing to prosecute the case. It is also not unusual for the police and prosecutor to have left loose ends dangling in the criminal investigation. By engaging in early and thorough review of the evidence and/or by engaging the services of a private investigator to dig deeper, a defense attorney can sometimes develop exculpatory information to present to the prosecutor that leads to dismissal of the charges.
An example is a recent murder case I handled. The prosecution’s case against my client was primarily based on Facebook messages sent from my client’s account to the eventual victim, informing him that he was waiting for him outside his residence. There was no eyewitness identification and no physical evidence placing my client at the scene of the murder. Police investigators had ridiculed my client’s story that he had not sent the message and that he shared his Facebook account with a group of people. However, a careful review of the voluminous Facebook data supplied by the prosecution in discovery verified that in fact my client’s Facebook account was used by several other people. This created the very real possibility that someone other than my client had sent the message to the victim. When I presented an accurate and concise summary of the Facebook data to the prosecutor, a dismissal of the murder charge followed in a few weeks. My client was released from jail after lengthy pretrial detention.
Another example is a rape case I recently handled. My client was charged with the rape of an acquaintance but had wisely not made any statement to the police upon arrest. We maintained this posture of not disclosing our defense for many months, waiting to see if DNA results would physically link my client to the alleged victim. When the DNA results eventually came back with a positive match, we decided to present a “proffer” to the prosecution, i.e., a summary of what the client would be expected to say if he were to testify at trial. A proffer is submitted under the protection of the rule of evidence that prohibits communications made during the plea negotiation process from being used against a defendant at trial. Our proffer presented a summary of my client’s version of events describing how he and the alleged victim had engaged in consensual sexual intercourse and that there was no rape. Because the prosecution had insufficient evidence to overcome my client’s version of events, they dismissed the case soon after reviewing the proffer.
Thus, someone who is charged with a serious crime should obtain legal representation as soon as possible. Although the defense has no obligation to present evidence at trial, careful review and investigation can sometimes develop exculpatory evidence. An experienced criminal defense attorney may be able to gather and present such information to the prosecution and obtain a favorable result without trial. The risk of disclosure to the prosecution is that they will use this information not to dismiss the case but to better prepare for trial. Every case is different, and it is usually a tough strategic choice between (1) disclosing such information in the hope of the prosecutor dismissing the case and (2) holding the information until trial to undermine the prosecution’s case.

Ratings and Reviews

Mark Patrick Foster JrReviewsout of 7 reviews
10.0Mark Patrick Foster Jr