I’ve posted about prosecutors and how they might win/lose cases but what about defense lawyers?  Do defense lawyers have tricks or are they so good ts “misleading” the jury that they can win all the time?

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?