Strategies for Defending a Drug Case in the United States
Attorney at Law, Charlotte, North Carolina USA
"Justice is an affectation of perspective, not a universal value." Carlos Ruiz Zafon, The Angel's Game.
- 1 Background
- 2 THE IMPORTANCE OF EARLY ATTORNEY INVOLVEMENT IN THE CASE
- 3 TO COOPERATE WITH THE POLICE OR NOT?
- 4 PRE-TRIAL EFFORTS IN PREPARATION FOR TRIAL
- 5 Investigate, Investigate, Investigate.
- 6 Other Motions.
- 7 TIME FOR TRIAL
- 8 5. CONCLUSION
Obtaining justice for someone charged with a crime depends upon how "justice" is defined. Justice is usually defined in terms of "fairness" or "rightness", but can and is defined differently from community to community within a nation and between nations of the world. Nations using the Rule of Law to define how justice is dispensed tend to claim that law is not "subjective." Rather, they regard the law as an "objective" means that results in each individual being treated equally by those who are charged with carrying out the dictates of the law on a day to day basis. In reality, the truth of that ideal is in the eye of those subjected to the experience of the criminal justice system.
In the United States it is said each person suspected of or charged with a crime has certain rights that are inviolate. Among those rights are the right to remain silent, the right to be represented by an attorney, the right to have neither their person nor property subjected to unreasonable searches or seizures, the right to not be physically or mentally abused or deprived of basic amenities (food shelter or clothing) by the police, the right to reasonable bail, the right to be presumed innocent , the right to confront those persons and that evidence which is put forth at trial in an attempt to prove their guilt and the right to be tried by a jury of their peers before a fair and impartial judge. If guilt is not established at trial beyond a reasonable doubt, then one has the right to be set free or remain free. If convicted of a drug offense in the United States, one is usually subjected to a potentially severe sentence including the possibility of life in prison without parole (but NOT the death penalty). In addition to long prison sentences, being convicted of a drug offense may result in the payment of extremely heavy fines and forfeiture or the seizure of one's property (such as cash, cars, homes, land, etc.) by the government. Convictions of a drug crime often have additional consequences. Because most drug crime convictions are labeled as felonies, even without going to prison or upon release from prison one may not be able to obtain worthwhile employment. Obtaining employment in certain fields such as health, education, or security related occupations may be prohibited. Physicians, attorneys and others may lose the right to obtain professional licenses. Convicted felons are generally prohibited from possessing a firearm. Non-citizens are subject to deportation (the United States Supreme Court is currently considering a case, Carachuri-Rosendo v. Holder, that may change this outcome for lower level drug convictions). To avoid receiving a draconian sentence, a defendant charged with a drug offense may be given the "opportunity" to become a "snitch" (a witness for the government against friends, family or acquaintances one has sold drugs to or obtained drugs from). Agreeing to and carrying out this agreement often puts the witness (and/or their friends and family) in danger of personal harm or even death. Becoming a snitch oft times means testifying in court against the people you set up for the government to arrest and prosecute. All of these potential consequences require that an attorney representing someone charged with a drug crime be aggressive, diligent and zealous in their representation of their client. The rest of this paper will be devoted to how one may do that in the United States.
THE IMPORTANCE OF EARLY ATTORNEY INVOLVEMENT IN THE CASE
Representing a defendant in a drug case is different from almost any other kind of criminal charge. Although all criminal cases require the attorney to get involved as soon as possible in the representation of the client, this is particularly necessary in a drug case. The reason for this is that in a drug case the client and the attorney must almost always make decisions quickly which are not only risky, but also may be irrevocable.
If your client is being offered the option of becoming a cooperating witness for the government, the offer may need to be seized almost immediately or it will be rescinded or made less productive, if not acted upon quickly. Sometimes the window of opportunity is only open for a few short hours. This is especially true if your client is one of several persons arrested at the same time and place. Under those circumstances the police are eager to point out there are others who can and already may be helping the police against your client or the suppliers or intended recipients of the drugs. Word of arrests often travels fast throughout the drug using community so very soon no one may be willing to deal with your client for fear of being set up for arrest themselves. The information that your client possesses about others who deal drugs can quickly become stale and worthless unless acted upon propitiously.
There are several steps that a lawyer can take to help the client be as well informed as possible before making this decision. If your client doesn't already have a copy of the arrest warrant, the first place the lawyer heads to is the clerk of court's office to obtain it. The arrest warrant will tell you who the arresting officer is and exactly what the charges against your client are. Also, while at the clerk's office it is wise to determine if a search warrant was utilized in the arrest of your client and the seizure of the drugs. The search warrant will provide you with important information regarding the evidence against your client such as who made the buy that lead to the issuance of the search warrant, where the buy took place and who the buy allegedly was made from. This information will in turn enable you to form some evaluation and analysis of possible viable suppression of evidence issues that may lead to the charge against your client being dismissed. This information collected at the clerk's office puts you and your client in a better position to decide whether or not to become a snitch.
The next step for the lawyer to take is to find and talk to the arresting officer who is usually a vice and narcotics officer. Unlike many other crimes a drug bust is one in which the officer usually feels very confident about the arrest of your client because the officer perceives the evidence obtained to be conclusive of your client's guilt. This tends to make drug cops willing to be more talkative to defense lawyers, especially if they are interested in recruiting your client to be a cooperating witness. To help your client in making a decision to go to trial or to cooperate with the authorities it is useful to talk to the officers about at least some, if not all, of the following questions:
How did the arrest occur? Was an informant and/or undercover buy used? Was there a search warrant? Was it a vehicle stop? Where was your client in relation to the drugs? What amount of money, if any, was confiscated? Are the drugs a trafficking amount?
Did your client make a statement? If so, what did your client say? Your client may have already admitted guilt and expressed an interest in cooperating or they may have denied the drugs belong to them and they know nothing about where they came from or the drugs are the property of one of the codefendants.
What did the codefendants say? Have any of the codefendants taken responsibility for sole ownership of the drugs? Have any of the codefendants identified your client as the transporter, manufacturer or sole possessor of the drugs? Are any of the codefendants already cooperating?
Are State or Federal authorities prosecuting the case? In State court a small amount of drugs can lead to a reasonably short term prison sentence and a defendant is allowed to make a motion to recognize "substantial assistance" as a way to reduce the prison term. In Federal court a small amount of drugs can lead to a life without parole sentence and only the prosecutor is allowed to make a motion to grant "substantial assistance" for the lowering of a prison sentence. Also, if there were any guns involved in the drug case then in Federal court there will be an automatically enhanced consecutive sentence in addition to the sentence for the drugs.
What kind of drugs are involved? Sentencing schemes place drugs on different levels or schedules which leads to widely divergent sentencing options dependent upon how onerous the drug is thought to be. For example, in the Federal sentencing scheme the sentence for crack cocaine is 100 times more for the same amount of powder cocaine. A bill is currently pending in the United States Congress to reduce that difference to 20 to 1.
Were the drugs field tested? If so, the law enforcement authorities have at least a working assumption as what the drugs confiscated are. The field test may have shown the drugs to be counterfeit (which can have a beneficial effect for your client, in some jurisdictions). If the field test was not positive for a controlled substance, the arrest of your client may not be valid. This may also mean the lab test of the substance is crucial to your client's case.
Are the authorities interested in your client's cooperation? If there are codefendants who are already cooperating, the officers may not feel they need your client's help. If your client acted in a way which did not endear him to the arresting officers, they may refuse to let him cooperate. Your client may be too low a level a person in the drug trade to be of any use for cooperation purposes. On the other hand, they may feel that your client is the one who possesses the most knowledge about this drug operation and they are desperate to have cooperation from your client.
Armed with the answers to the above questions,(your preliminary discovery materials) you are well on your way to being able to listen to your client's version of what happened and to assist your client in the decision making process of whether to cooperate or not. In most other kinds of crimes you would be wise to wait until you have been provided by the prosecutor with the evidence they have collected (the discovery materials) before deciding to go to trial or seek some form of accommodation with the government. Due to the "cooperate or not cooperate" conundrum that is ever present in drug cases, this is about as late as you can wait, if you are going to provide effective assistance of counsel to your client.
TO COOPERATE WITH THE POLICE OR NOT?
As throughout the entire process of the case, it is your responsibility to answer, as best you can, your client's questions about the possible impact of each of the choices confronting them. Helping clients make these crucial decisions is an art, not an exact science and it is best to avoid making predictions as to what is best for the client. The decision of cooperating or going to trial is for your client to make. Your job is to provide your client with as much information and advice as possible, in order for your client to make the decision they feel is best for them. Whatever the client's decision is, it may or may not be the "right" decision, but it is their decision.
If your client decides to cooperate, your job has just begun. Your client will continue to need your advice and information about how cooperation actually is supposed to work. Also, there will be ongoing interventions that may need to take place on behalf of your client with the vice officers who are managing the cooperation, and/or with the prosecutor. There is the possibility that either side in this equation will come to the conclusion that cooperation isn't working. If that happens, you and your client will need to shift gears towards the next choice the client must make - trial or attempting to work out a plea agreement.
Of course, your client may choose not to cooperate with the police and, instead, go to trial. If that is the choice your client makes, you then begin the process of preparing the case for trial. The pre-trial actions that are necessary would then become your focus.
PRE-TRIAL EFFORTS IN PREPARATION FOR TRIAL
The American Bar Association Code of Professional Responsibility at Canon 7 states, "A lawyer should represent a client zealously within the bounds of the law."
Jury Instructions. According to the Sixth Amendment to the Constitution of the United States a criminal defendant is entitled to have a trial before a jury of their peers. Peers are usually defined as citizens from the same general community as the defendant. A good way to start the pre-trial preparation is to review the pattern jury instructions likely to be presented to the jurors as the law they must apply to the evidence presented at trial. In order for the jury to convict your client the evidence presented at trial must satisfy the burden of proof of "beyond a reasonable doubt" or the jury must acquit.
Jury instructions set out the elements of a crime. Each charged crime has a number of elements (usually defined as the acts or composition of acts which must have been completed in order for the jurors to conclude this element was proven). Each and every element of any charged crime must be proven to the satisfaction of each juror before a defendant can be convicted of that specific crime.
Drug crimes generally involve charges of possession, sale, intent to distribute and/or conspiracy. Conspiracy is defined as joining with another (or others) to commit or accomplish an illegal act. Knowing how the jury instructions define what must be proven in order to convict your client is useful in evaluating the evidence against your client. Doing so enables you to determine the weaknesses of the government's case against your client and clarifies the areas of evidence gathering and research of the law you need to concentrate on as you investigate the case. It is important to explore every potential aspect of the government's evidence in order to point out those inconsistencies and gaps that make the government fail to complete or fulfill its required burden of proof.
Constant Contact with Client. It is impossible to over emphasize the necessity to routinely communicate with your client. It is absolutely necessary to consistently remind your client they are to talk to NO ONE ELSE about their case unless you are present. Remind them this means cellmates, police, guards, family, friends, lovers or anyone else. Almost all jails and prisons in the United States now routinely tape record ALL inmate telephone conversations. Advise your client to NOT write letters to anyone in which they discuss their case. Your client has the right to remain silent. Not exercising this capacity causes many defenses to be destroyed by "loose lips."
Another reason to spend time with your client is for both of you to share information about the case with each other. As you go over in detail the discovery material (defined as the evidence the government will present at trial and which is now required in most jurisdictions to be shared in its entirety with defense counsel well before trial), you will discover important pieces of evidence you need to discuss with your client. Your client is likely to learn about aspects of the case from the discovery material they will feel compelled to discuss with you. Their insights into their case can be of critical importance in putting forth a viable defense to the charges against them. Also, they may hear from others (including codefendants) information that is vital to the defense of their case.
Maintaining contact with your client enables them to see what you are doing on their behalf and creates a bond of trust that is essential to working together to provide the best possible result for the client. This will also make it likely that your client will be more honest with you, especially about the weaknesses they see in the case or the evidence they are most concerned about coming out at trial that may not be in the discovery yet may be extremely damaging to their case. If you client withholds information of this type from you it may be fatal to the defense you are presenting for the client at trial.
Information important for pursuing the defense of your client's case that you obtain from your client contact includes, but is not limited to:
- Background information about your client such as; education, work history, family structure, medical problems, mental health history, adjustment to school and history of upbringing
- Prior criminal record, including drug related cases
- History of drug use including the types and amounts used
- Persons who the client thinks are potential witnesses in his case
- If there is a suspected confidential informant, does the client have an idea as to who it is
- Possible defenses to the charges
- Items seized (from the client and others) at the time of the arrest
- Client's ownership of any of the places or vehicles or other locations from which the drugs were seized
- Any other information the client thinks may be useful as full disclosure to the lawyer about the case
Investigate, Investigate, Investigate.
It is difficult to over stress the importance of investigating the case against your client the government has assembled. Without such an investigation you are essentially an unarmed person in a gun fight. Your ability to call into question the government's assertions rests squarely on the length and depth of your work in going behind the work already done by the government. For example, the government's case often includes photographs and/or diagrams of the crime scene , the arrest and statements of witnesses and co-defendants as to what they say happened. Going to the scene enables you to determine if a witness could even see what they say they saw happen, or if the street lights, buildings, furniture or other items could even be where the government or witnesses say they are. Another advantage of going to the crime scene is that people see you there and want to know what you are doing. Often this leads to "undiscovered" witnesses or witnesses who gave statements to the police divulging additional or different information than what they provided to the police. What you learn in your crime/arrest scene investigation sometimes leads to a whole different explanation of what happened that has a crucial impact on how you will be able to conduct the defense of your client at trial. Potential Pre-Trial Motions.
Although there are a large number of pre-trial motions to file in a drug case, the following list and discussion focuses on the most common ones.
MOTION TO SUPPRESS. Motions of this genre would include, but not be limited to, the suppression of ILLEGALLY OBTAINED EVIDENCE For example,the drugs or other physical evidence that may have been illegally obtained by the police. Different standards apply to warrantless and search warrant searches and seizure, but both are ripe for attack usually on violations of constitutional, statutory or procedural grounds. If the search was not conducted pursuant to a warrant, was consent to search "voluntarily" given? These attacks may be based on inadequacies in the reasons for the stop of a person or vehicle, the inadequacies in the search warrant or arrest warrant or the affidavit in support of probable cause for either. Other possibilities are suppressing the "fruits" of an illegal search or arrest or the failure to obtain valid consent.
ILLEGALLY OBTAINED CONFESSIONS, ADMISSIONS OR STATEMENTS Suppressing statements wrongfully obtained by coercion, involuntarily or under duress is to the benefit of the client. Violations of Miranda warnings (the right to remain silent, the right to have an attorney present and the right to have an attorney appointed if you can't afford one)which are derived from the Fifth and Sixth Amendments to the United State Constitution are subject to suppression. Statements that arose from an illegal arrest are to be suppressed. Questions which often arise in these contexts revolve around the use of physical force, deprivation of necessities, threats or promises. Was the person in custody at the time and was the statement made in response to police questioning? Were Miranda warnings provided, did the defendant understand or comprehend the meaning of these warnings and , if the defendant invoked the rights, was that invocation honored by the police? Did the police respect the defendant's right to counsel after that right had attached? If a codefendant's statement is to be used at a joint trial, has the codefendant's statement been sanitized of all references to your client?
SEVERANCE OF TRIALS FOR CODEFENDANTS The motion for severance should be employed where defendants have inconsistent or incompatible defenses to the charges or where codefendant statements may eviscerate your client's right of confrontation and cross examination pursuant to the Sixth Amendment to the Constitution of the United States. CAPACITY OF CLIENT TO PROCEED TO TRIAL If your client presents issues of capacity to understand the proceedings against them or is unable to assist you in the presentation of the defenses to the charges, this issue needs to be raised and resolved pre-trial through a hearing as to competency to proceed. This necessitates the evaluation of your client by experts to provide findings to the judge as to competency to proceed to trial.
CERTAIN MOTIONS TO DISMISS PRIOR TO TRIAL These motions assert the following: the law your client is charged with violating is unconstitutional on its face or as applied to your client; the statute of limitations has expired; the trial would constitute a violation of double jeopardy as applied to your client; your client's speedy trial rights have been violated; the court lacks jurisdiction over your client or the charge against your client(case filed in the wrong court); an issue of law or fact essential to prosecution of this case has been adjudicated in your client's favor previously (res judicata); the indictment fails to charge an illegal act under any existing statute (statute has been amended or repealed); or, your client has been granted immunity from prosecution base on the facts in this case.
MOTIONS IN LIMINE These are motions made to prevent certain inadmissible evidence being referred to or offered at trial. They include, but are not limited to: evidence not disclosed in accordance with discovery requirements; prohibiting reference to your client's exercising the right to remain silent; prior "bad acts" or unduly prejudicial information regarding your client (including alleged gang affiliation); prohibiting inflammatory photographs or exhibits; the exclusion of unreliable tests or demonstrations or testimony mentioning these; challenging the admission of certain hearsay evidence that violates your client's rights under the Rules of Evidence or the right to confrontation and cross examination; and, challenging a witness's competency to testify.
Scheduling and holding hearings on these motions prior to trial enables your client to exercise another important right - the right to issue subpoenas that cause the government witness to come to court and testify under cross examination so their testimony at trial will be subject to scrutiny before they take the stand at trial. Exercising this right enables you to gain much more information about the evidence against (and for) your client prior to exercising the right to trial. At this point in the process your client is better prepared to make the decision about exercising the options of trial, negotiating a plea agreement or even pleading as charged (if no plea agreement is forthcoming).
TIME FOR TRIAL
Since your client has weighed the options and decided to go to trial, now is the time to exercise the benefits of all of the pre-trial preparation. The trial starts with the selection of the jury, the twelve citizens who will hear the admissible evidence against your client. Then, based upon the law as presented to them by the presiding judge, these jurors will determine what they agree the facts are and apply the law to those facts. They are then in a position to unanimously determine whether your client is not guilty or guilty.
"Most of us have never faced a serious criminal charge that hauls us before the justice system. If suddenly, during these fearsome times, we were forced to peer into the mythical safe box where our rights are said to be stored, what would we find? Are we still guaranteed a fair trial? Have we ever been? If we're charged by the state with a penitentiary offense, can we adequately defend ourselves? How is it that in these days so many helpless innocents find themselves behind bars, some even awaiting the executioner's needle? When we look into this safe box of sacred rights is it, indeed, filled to the brim, or do we discover little more than an old folder of empty promises?" Gerry Spence, Trial Attorney, The Smoking Gun, 2003, page 1.
JURY SELECTION (VOIR DIRE)
The art of jury selection is difficult to learn because you are trying to determine which twelve people on the jury panel are most likely to be fair and impartial in applying the facts and the law to your client. Who amongst these potential jurors will truly be willing and able to give your client the "presumption of innocence" and be willing to actually exercise the meaning of "proof beyond a reasonable doubt" in their deliberations on the value of the evidence they have heard?
For several years police agencies in the United States have been conducting a "war on drugs." The evidence of the failure of that "war" abounds in the cities and countryside of this nation. Since jurors are chosen from everyday people, it is difficult, if not impossible, to find someone who hasn't had the scourge of drugs infect their family, friends or coworkers. Biases against those charged with drug offenses are to be expected and those biases are not likely to be waived by your jurors. Therefore, the work you have in picking a jury is to first determine which potential jurors may be willing to not assume your client's guilt merely because they are CHARGED with a drug offense. Ask potential jurors gently probing questions about how it would feel if they were falsely accused of this offense and were sitting where your client is sitting. If they agree this would make it unlikely for your client to get a fair trial, ask them how they would go about setting aside their feelings in order for them to enable your client to obtain the fair trial every accused is entitled to receive.
Getting the jurors to agree to protecting the rights of every defendant to the presumption of innocence and the test of proof beyond a reasonable doubt is your primary goal in picking a jury. Getting strangers to open up to you and to truly agree to be fair and impartial in viewing the evidence against your client is an art that is learned in a lifetime of choosing juries. It requires asking probing questions in a way which doesn't offend the juror or makes them to be untrue to their values, yet enables them to agree to uphold the time honored principles on which jury trials are based.
It is often stated that jurors determine your client's guilt or innocence by the close of opening statements. Judges usually describe opening statements to jurors as the lawyers' opportunity to set out a "road map" of their respective cases. The judge informs jurors these opening statements are not evidence or even arguments about the evidence. So, how does a road map enable a jury to decide guilt or innocence? It doesn't! The opening statements are the first time the lawyers stand in front of the jurors, look them in the eye and say "This is what the case is really about." At this point the jurors are actually sizing you up. Since "first impressions" often determine one's opinion, the judgment the jurors are rendering is about their reaction to the lawyers' presentations.
Prosecutors generally use this occasion to say what your client is charged with and then lay out the evidence they intend to present to prove your client's guilt. The defense lawyer then puts forth the reasons why the prosecution's evidence will fail to convince the jurors of their client's guilt. Since the government goes first in the presentation of the evidence, it is critical for the defense lawyer to put forth to the jury a theory of the case that will cause them to already question and doubt that the government has sufficient evidence to convict your client. In the opening statement the defense lawyer must plant the seed of doubt in the minds of the jurors so they will stay tuned for all of the trial instead of tuning out during the trial or after the government has completed its presentation of the evidence. The story you weave at this stage must have a reason to convince the jurors to wait until they have heard all of the evidence before determining your client's fate. In the opening statement you are suggesting to them the reasons why they should be questioning the veracity of the government's witnesses by paying close attention to inconsistencies and the lack of crucial evidence. A reasonable doubt is ANY doubt based upon reason and common sense. Accepting this challenge by going to the heart of this question is what gets or keeps the jurors attentive to the defense you are presenting on behalf of your client.
An effective opening statement is one in which you attack, counter and discredit the government's proposed evidence of proof. You have planted the seed of reasonable doubt which you will nourish to full growth during the rest of the trial.
CROSS EXAMINATION OF WITNESSES
[[[subject to the discretion of the judge to limit repetitive or unduly harassing questions]." Davis v. Alaska, 415 US 308, 316 (1974). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." A trial court commits constitutional error if it merely allows a defendant to ask the prosecution witness "whether he is biased" while not allowing defense counsel to explore the facts underlying "why the witness might have been biased or lacked impartiality." Davis v. Alaska, 415 US 308, 316, 318 (1974). A primary purpose of cross examination is to expose to the jurors whether or not the witness is lying, biased, prejudiced, impartial, untrustworthy and/or has ulterior motives in testifying against your client. Areas of investigation which expose these egregious qualities in a snitch or cooperating government witness (or any testifying witness) are many. A partial list for exploration would contain:
- Bias against your client. Does the witness have any reason to dislike, fear, hold a grudge or want to see your client convicted?
- Prior criminal convictions and any pending criminal charges?
- Originally charged with the same offense or in the same indictment as your client?
- Potential penalties for any pending charges.
- Transcripts of any prior testimony.
- Previous written or recorded statements of the witness.
- Written or unwritten agreements with the government and witness' understanding of the agreement(s).
- Records of law suits previously filed by the witness or any other prior experiences with the legal system.
- School, employment, military, mental health and medical records of the witness.
- Jail and prison records of the witness.
- Copies of letters written to the judge or prosecutors.
- Copies of letters written to family, friends, girl friend or others containing information relevant to the witness' testimony.
- Is the witness on probation for a previous crime?
- Has or will the witness receive any payments for undercover work or testimony?
- Gang or other group affiliations.
- Prior "bad acts" which did not result in arrest or prosecution.
- The witness' reputation in the community.
- Possession of guns and other weapons.
- What kind of cars does the witness own?
- Any evidence of possession of large sums of money or an expensive life style?
- What kinds of drugs has the witness dealt and over what period of time?
- Has the witness received any special treatment from the government?
Another area of importance for cross examination is "expert witnesses" who are deemed to have expertise that would assist the jury in determining the facts for this case. Although there are a wide number of possible "experts" who may testify at trials for this purpose, generally, those most likely to testify in a drug case are forensic "experts" of one kind or another. In a drug case this would usually be a laboratory analyst who has tested the drugs to determine if indeed they are an illegal drug or controlled substance. Another function of the lab analyst is to access the weight and purity of the substance. Given the widespread documentation over the past several years of the failure of crime labs to provide true and accurate reports of their analysis, it is incumbent upon the defense lawyer to mount a thorough and vigorous examination of the validity of this "experts" work. Since most lawyers have little or no scientific training, it is mandatory to engage the services of a forensic expert to verify or expose the errors of the laboratory findings the government intends to present at trial. Due to the complicated nature of this kind of testimony, it is beyond the scope of this paper to go into the cross examination of an expert witness. It is the lawyer's duty in these cases to engage their own forensic expert who can provide either or both cross examination questions of the government's witness or rebuttal testimony on behalf of your client.
An effective cross examination at trial is generally the most important way to dismantle the house of cards the government has stacked against your client. Knowing more about the case and its nuances than the prosecutor does is the key to making this happen. Out working the other side gives you the necessary leverage to produce a favorable result for your client. There are other important aspects of a trial that could be addressed. A few of these include: making objections to evidence that it may be impermissible for the jury to consider, your client's decision about whether or not to testify, deciding whether or not to put up any evidence on behalf of the defendant. Due to the limits of space, these areas and others will have to wait for another time for exposition.
The evidence has been presented to the jurors and now is the point where they will begin to weigh the evidence in their deliberations. Before that happens, the prosecutor and you have the chance to make your closing arguments to the jury. This is where you "put it all together" for their consideration as to your client's innocence or guilt. This is when your work at dismantling the government's evidence bit by bit comes to fruition. The prosecutor usually goes first and attempts to convince the jurors that they have presented evidence that proves beyond a reasonable doubt your client's guilt. Then comes your chance to highlight how the government has failed to accomplish this by going point by point through the evidence to show how it is insufficient or lacking in credibility as to proof beyond a reasonable doubt.
If your testing of the evidence through cross examination has been effective, you will be able to show in your closing arguments just how woefully inadequate the government's evidence is. There is no one way to do a closing argument. Each lawyer, over time, finds what works best for them because the evidence in each trial is distinct to that case. Generally, you have put forth a theme and theory of the case throughout the presentation of the evidence. Often in your closing argument you are able to refer back to what both you and the prosecutor said the case was about in your opening statements. In your closing argument you need to show the jury how you delivered on the promise of your opening statement and how the prosecutor failed to deliver. Many times the trial exhibits turn out to be more beneficial to your client than to the prosecution so handling them and referring to them reinforces your argument that the evidence against your client is lacking. Some lawyers prefer to use charts, diagrams or descriptive examples submitted at trial to illustrate the point you are making for their consideration.
Whatever approach you use, it is critical to emphasize the numerous inconsistencies in the testimony and other evidence presented against your client. Whether you use charts or simple oral argument, it is helpful to elaborate the ways in which these inconsistencies and errors of fact gut the government's case against your client. Some witnesses' testimony may have been completely discredited and you should recount that for the jurors' consideration.
If it is a case in which a snitch witness testified against your client and on cross examination you pointed out the snitch is used to lying to try to get what they want, then isn't it likely, if not apparent, that they are lying in their testimony in order to obtain a benefit from the government - a lesser sentence, dismissal of charges, a pass for probation, etc. What liars do is tell lies so they become good at what they do. If the witness isn't believable, then their testimony must be discounted.
Another useful way to assist jurors in determining reasonable doubt is to use illustrative examples. Here are two such examples:
OR "Suppose you wake up one morning and read in the newspaper that a family in your neighborhood has died from eating poisoned mushrooms. And suppose that right then Mr. Rat appears at your door asking you to buy some nice fresh mushrooms. You recognize Mr. Rat. You know he is/was a drug addict and a proven liar and you tell him you know this. Mr. Rat tells you that is all in the past and he has turned over a new leaf. Would you hesitate or restrain yourself before buying his mushrooms? Of course you would. Because you would have a reasonable doubt as to whether or not those mushrooms were safe. That's the kind of evidence the government is trying to sell you in this case."
An effective closing argument is one in which you sum up for the jurors the many reasons that based upon the evidence they have received in this case they have an abundance of reasonable doubt as to your client's guilt. By following the law of this case as applied to the facts of this case, you ask them to find your client NOT GUILTY.
The contents of this paper are designed to provide you with some strategies for defending a drug case. These are not the only available strategies, but they should set you to thinking about these and other ways you can put forward a successful defense for your client. It is the task of the criminal defense lawyer to be creative, within the bounds of the law and the applicable ethical standards to zealously represent the interest of the client. "We as criminal defense lawyers are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers to protect our clients from those people." Cynthia Roseberry, Professor, DePaul University College of Law.
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