Criminal defense is what most people think of when they think of lawyers. The most famous lawyers who stood up in movie court scenes and delivered riveting dramatic summary speeches were criminal defense attorneys. In actual trial situations, this is what criminal defense attorneys actually do.
Build cases for defense and collect evidence. They inform their clients and get a clear idea of what happened in the case. In the North American adversarial justice system, defense attorneys are in a continuous back and forth with prosecutors. Active interaction with prosecutors starts at the very beginning of the case with an exchange of evidence called the Discovery. Discovery assures the court that both sides start out with the same evidence.
Defense strategies are often formulated in reaction to the way prosecutors have formulated their cases. They lay out scenarios that negate the prosecutor’s scenario and find evidence that supports the scenario of innocence. The prosecutor’s scenario and supporting evidence must be strong enough to convince the judge or jury of guilt beyond doubt. The defense attorney and his team must find evidence to introduce doubt about guilt.
Meet with Prosecution for sentence moderation negotiations and plea bargaining. A big part of modern criminal trials is a pre-trial negotiation between the defense and prosecuting attorneys. If the evidence for guilt is strong, the defense attorney may work with the prosecutors to find a way to reduce court costs and time by negotiating sentencing terms and charges acceptable to the defendant in exchange for a guilty plea.
Over the last 50 years, defendants and their defense attorneys are choosing to avoid trials altogether. Now, less than three percent of criminal cases actually go before a trial. The sentence moderation negotiations and plea bargaining processes have become the way most criminal cases are resolved.
Participate in selecting the jury. (where there is one–jury trials are becoming less and less common). The right to be tried before a jury of one’s peers is guaranteed by the United States Constitution. The fact that fewer trials are actually conducted in front of juries is because people accused of crimes often reject big formal trials for a wide variety of personal reasons, often because they don’t want the facts of the case to be known by people in the community.
If an accused person maintains their innocence and wishes to proceed to trial, a jury of a proscribed size must be selected. The judge presents a sample of people chosen from the jury pool and a “speaking truth” (“Voir Dire,”) session is held. Prosecutor and defense attorney have a controlled number of questions they can ask the jury pool to try to find potential members who will not hold unfavorable biases. Conducting the “Voir Dire,” is an art in itself. Skilled defense lawyers work hard to pick the right jury members.
Observe the rules of evidence and make sure the prosecutors are also observing them. During criminal trials, evidence rules ensure a smooth and fair process. American trials are like debates. Rules of evidence are necessary to ensure that both sides have a chance to present their viewpoints and their evidence and counter-evidence before the jury or judge. Rules of evidence have been established at the state level by state court systems. However, Federal Rules of Evidence were established in 1975 by the US Supreme Court and 40 out of 50 states tend to conform to the Federal Rules.
Rules of evidence include 11 sections with clear explanations within each.
- General provisions that explain rulings on evidence, preliminary questions, evidence that is admissible and not admissible, and recorded statements.
- Judicial notice of facts.
- Presumptions in civil cases.
- The relevance and general admissibility of evidence.
- Privileges such as attorney-client privilege and the like.
- Rules about witnesses.
- Opinions and expert testimony.
- Rules about hearsay (or indirect statements used in evidence).
- Authenticating evidence.
- Using contents of writings, recordings, and photographs.
- Miscellaneous rules.
Criminals attorneys have to be on the alert for violations of rules of evidence during the trial. A defence attorney has to object to any such violations that could prejudice decisions by the judge or jury about the events of the case.
Villaume & Schiek have been working to keep clients out of jail and off the criminal record books since 1979. Please contact us to learn more.