Difference between revisions of "Strategies for Defending a Drug Case in the United States"
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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. | 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." | |
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| − | + | 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. | |
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| − | + | 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. | |
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| − | + | 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. | |
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| + | 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." | ||
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| + | 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. | ||
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| + | 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. | ||
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| + | 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 | * 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 | * Prior criminal record, including drug related cases | ||
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* Client's ownership of any of the places or vehicles or other locations from which the drugs were seized | * 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 | * Any other information the client thinks may be useful as full disclosure to the lawyer about the case | ||
| − | Investigate, Investigate, Investigate. | + | |
| − | + | == Investigate, Investigate, Investigate. == | |
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| + | 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. | Potential Pre-Trial Motions. | ||
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| + | 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. | '''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. | ||
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'''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? | '''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? | ||
| − | Other Motions. | + | |
| + | == Other Motions. == | ||
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'''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. | '''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. | 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. | ||
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'''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. | '''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. | ||
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'''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. | '''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. | ||
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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). | ||
== 4. TIME FOR TRIAL == | == 4. TIME FOR TRIAL == | ||
