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?

The post How Do Defense Lawyers Win?? appeared first on Colin T. Nelson.

It’s important to remember that a trial is not about proving innocence. At the end of a trial, the jury is instructed to find the defendant not guilty if they decide the government has failed to prove him guilty beyond a reasonable doubt. That means that for a defense lawyer, their job is to point out the doubts about the defendant’s guilt that are reasonable.

What tools can they take out of the “tool box” to accomplish this?

1.  The defense lawyer can exploit technical, legal details.

People often talk about someone “getting off on a technicality.”  It can happen, but usually those technicalities are important—like constitutional rights.  Here’s an example:

The 4th Amendment to the constitution protects us citizens against unreasonable search and seizures. If police violate this prohibition, any evidence they seize may be thrown-out of the trial so the jury will never consider it.  Often, that’s the main evidence for the prosecutor so their case collapses as a result.

The defense lawyer would assert this defense before the judge without a jury (since the jury only decides questions of fact, not law) and would make the proper legal arguments to try and convince the judge.  If the judge agrees and the prosecutor has to dismiss the case, the defense wins without even getting to a jury.

Another example was a case I tried a while ago.  The defendant had been accused of murdering another man by beating him in the head, weighting his body, and tossing it into a local creek.  Several days later when the body was found, it had decomposed badly.  The Medical Examiner was unable to tell from the autopsy the cause of death.

They must do this to avoid people being accused of murder if the death was accidental or a suicide.  In my case, I argued to the judge that since the ME couldn’t prove exactly what caused the death, my client should not be charged with murder.  Maybe the victim fell during the fight and hit his head on a rock at the side of the creek–in which case, the defendant may be guilty of assault but maybe not murder.

A final example happened years ago when I defended a man charged with aggravated assault with a deadly weapon.  Of course, things like guns, knives, etc. are deadly weapons but this man used…a car.  He aimed his car at the victim and tried to run him over.  Luckily he didn’t kill him.

The question I raised to the judge was: can a car be considered a “deadly weapon?”  If the judge ruled it wasn’t a deadly weapon, then the defendant could only be found guilty of a less serious crime–a “win” for the defense because the penalty would be much less serious.

The judge ruled against me and the Supreme Court later defined a deadly weapon to include “anything that is used in such a way as to intend death to be the result.”

Next post we’ll look at other ways a defense lawyer can win cases.  Do you have any stories or experiences of your own?

Any defense lawyers that you’re mad at for getting a crooked win?

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