Recently, I’ve posted about why prosecutors lose cases.  Many people have an idea that if an accused person has a good enough, or expensive enough lawyer to defend them, they can get off.

True or false?

How do defense lawyers win?  What kinds of things do they try to do to beat the prosecutors?

First of all, keep in mind that most prosecutors in the U.S. “win” about 95+% of their cases.  A “win” means a finding of guilty.  That number is high because the vast majority of people charged with a crime, admit it and don’t go to trial–even those with excellent and/or expensive defense lawyers.

But what about the cases that actually do go to trial?  How would a defense lawyer try to win?

There are four tactics I’ll look at that I’ve used or seen others use.  It’s important to remember that the defense never has to prove anything. An accused person is presumed innocent and does not have to testify.  That means for the defense, they’re trying to get the jury to find a reasonable doubt somewhere in the prosecutor’s case that will cause them to find the defendant not guilty.

1.  The defense lawyer will try to exploit a technical/legal detail. This is often thought of as “getting off on a technicality”–which we all hate to see.  But these so called “details” are often pretty important…like constitutional rights.

A judge would decide this since he is the only one qualified to make legal decisions while the jury is not.  (they make factual decisions)  The defense lawyer would typically raise these defenses before the jury is impaneled.

Here are some examples:

–The fourth amendment to the constitution prohibits the unreasonable searches of areas including our homes, cars, and our bodies.  Often, a criminal case is charged because the police have searched and found incriminating evidence–drugs are a good example.  The Supreme Court has ruled that if the search was unreasonable/illegal, the things found in the search cannot be presented to a jury.

Here’s where a defense lawyer would challenge the prosecutor’s use of the drugs as evidence, asserting they were discovered in violation of the defendant’s constitutional rights.  A judge would hear legal arguments from both sides and make a decision.  Obviously, if the evidence was excluded from the jury the prosecutor would have a difficult time proving the case and the defense would win.

That’s why people often get upset about these kinds of defenses.  The defendant is probably still guilty of possessing the drugs, but the judge’s ruling stripped the evidence from the prosecutor’s case.

–I tried a case where I questioned if the prosecutor could prove the medical cause of death of the victim.  In a murder case, the prosecutor must prove that the victim died as the result of a criminal act (gun shot, assault, poison) and that the death wasn’t an accident.

In my case, the victim had been beaten badly and the body hidden in a creek.  It wasn’t found for several days by which time, the body had decomposed considerably.  During the autopsy, the medical examiner would normally find evidence of the beating and blows to the head.  But in this case, he couldn’t tell for certain what the cause of death was.

I challenged the prosecutor’s ability to prove beyond a reasonable doubt that my client had used any criminal means to cause the death.  The judge disagreed but if he had ruled for me, the prosecutor would not have been able to prove the case.

Next post, we’ll look at further tactics that defense lawyers can use to win.  In the mean time, have you seen defense lawyers win?  How did they do it?