How Do Defense Lawyers Win??

Many people I talk with assume that if a defense lawyer costs a lot, he can “get anyone off.”  Maybe–

Let’s look at some more techniques that defense lawyers use to win in trial beyond what I’ve already posted:

2.  Defense lawyers exploit the evidentiary problems of the prosecutor.

Let’s look at a case I tried several years ago.  My client was accused of murdering a young man as they rode around together in a car bny shooting him.  After the shooting, the defendant got out of the car and looked up at a window in a house.  It was night, winter, snow all over, light coming from out of the window, and a witness inside the house looking out the window.  She testified that she saw and could identify the shooter.

On cross exam, I pointed out that if she were standing inside the house at night, had a light on behind her, and was trying to see out the window, there was bound to be a reflection of the room and herself from the window, making it difficult to see outside.  She agreed and backed off on her identification to the point she wasn’t sure.

Or, often when the prosecutor puts on multiple witnesses to the same crime.  Inevitably, there will be inconsistencies between one witness and another.  A good defense lawyer will point out these differences, arguing that no human can be perfectly sure of what they observed, as shown by the fact the witnesess, each of whom witnessed the same event, have contradictory recollections of what they saw.  These contradictions can lead a jury to have reasonable doubt as to the prosecutor’s case and find the defendant not guilty.

3.  The defense lawyer can promote the defendant’s version of the facts as the more believable one.

If the defendant chooses to testify (they don’t have to because they’re presumed innocent) and his story makes more sense than the story told through the prosecutor’s witnesses, the jury may believe the defendant and find him not guilty.  A defense lawyer has to be careful because often, the defendants are not quite as innocent-sounding as they think.  This has worked for me in self defense cases.  In one I tried, two men were drinking in a bar.  They began fighting over a woman.  Both were aggressive.   One of the men pulled out a gun and the other took the first punch–in self defense.  Although he hit first, since his story made more sense to the jury, the acquitted him.

4.  The defense lawyer may convince the jury that, in spite of the evidence, justice requires a different decision.

The most famous of these types of defenses, I think, is Clarence Darrow plea for the two young men who killed Bobby Franks in Chicago.  Leopold and Loeb.  The defendants were teenagers and their victim was a local friend of theirs whom they lured out into the country where they cold-blooded killed the younger boy.

There was no question at trial that Leopold and Loeb were guilty.  Darrow argued, instead, against the death penalty–which was the sentence for murder in Illinois at the time.  He appealed to the judge’s sense of justice, rather than the evidence.  Darrow challenged the judge to not execute the defendants because that wouldn’t be justice–it would be a compounding of the killing the two defendants already did.  The judge agreed with Clarence Darrow, found the boys guilty, but spared their lives.

Have you seen any defense lawyer use any of these tools?



About Colin Nelson

Colin T. Nelson worked for 40 years as a prosecutor and criminal defense lawyer in Minneapolis. He tried everything from speeding tickets to first degree murder. His writing about the courtroom and the legal system give the reader a "back door" view of what goes on, what's funny, and what's a good story. He has also traveled extensively and includes those locations in his mysteries. Some are set in Southeast Asia, Ecuador,Peru, and South Africa. Readers get a suspenseful tale while learning about new places on the planet. Colin is married, has two adult children, and plays the saxophone in various bands.

Leave a Reply

Your email address will not be published. Required fields are marked *