Difference between revisions of "Strategies for Defending a Drug Case in the United States"
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<br>James Gronquist | <br>James Gronquist | ||
<br>Attorney at Law, Charlotte, North Carolina USA | <br>Attorney at Law, Charlotte, North Carolina USA | ||
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"Justice is an affectation of perspective, not a universal value." Carlos Ruiz Zafon, The Angel's Game. | "Justice is an affectation of perspective, not a universal value." Carlos Ruiz Zafon, The Angel's Game. | ||
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| + | == Background == | ||
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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. | 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. | ||
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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). | 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. | |
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| + | "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) === | === 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? | |
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| − | + | 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. | |
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| + | 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. | ||
===OPENING STATEMENTS=== | ===OPENING STATEMENTS=== | ||
| − | + | 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. | |
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| − | + | 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. | |
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| + | 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=== | ===CROSS EXAMINATION OF WITNESSES=== | ||
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"[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: | "[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? | * Bias against your client. Does the witness have any reason to dislike, fear, hold a grudge or want to see your client convicted? | ||
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* What kinds of drugs has the witness dealt and over what period of time? | * What kinds of drugs has the witness dealt and over what period of time? | ||
* Has the witness received any special treatment from the government? | * Has the witness received any special treatment from the government? | ||
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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. | 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. | ||
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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. | 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. | 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. | ||
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===CLOSING ARGUMENTS=== | ===CLOSING ARGUMENTS=== | ||
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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. | 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. | ||
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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. | 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. | ||
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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. | 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. | ||
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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. | 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. | ||
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Another useful way to assist jurors in determining reasonable doubt is to use illustrative examples. Here are two such examples: | Another useful way to assist jurors in determining reasonable doubt is to use illustrative examples. Here are two such examples: | ||
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"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." | "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." | ||
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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. | 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. | ||
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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. | 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. | "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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| + | See [[United States]] | ||
