Friday, July 13, 2007

The Persuasive Case - Get The Facts

Why should a potential client know how the persuasive case is built? Isn't that the criminal defense lawyer's job? Fortunately, an informed client can benefit greatly from such knowledge. It means they can be actively involved in the development of their own defense. Involved clients are often happy clients. Secondly, when shopping for the right defense lawyer the informed client has objective criteria from which to chose a defense lawyer. If they interview a lawyer unfamiliar with building the persuasive case, the client should be looking elsewhere for legal counsel.

The first post in this series on building the persuasive case focused on credibility. The next areas to explore are fact gathering, developing legal theories, and brainstorming for ideas. Today we'll talk about gathering facts.

Factual material should be gathered from every possible source within the economic limits of the case. The client is a major source of information. Beyond the client, an independent investigation should be conducted by the defense lawyer. That means interviewing key witnesses and sometimes using a hired investigator as part of the defense team. A criminal lawyer should always discuss the utility of hiring an investigator during the initial client interview to help the client prepare for possible expenses that might be incurred.

The crime scene should be visited - including the time of day of the alleged events. Plan on taking photographs, preferably digital photographs which can be downloaded onto a computer and organized using an appropriate image viewing program. Depending on the case, physical measurements of the scene could be obtained. Sometimes preparing a scaled diagram of the area is important. Observe lighting conditions, traffic patterns, and movements of people in the area.

Develop a discovery plan. Specifically, what information is needed from the prosecutor to help develop the case? What photos or video did the police take? What physical evidence was collected? (Amazingly, so few lawyers even inspect the physical evidence when preparing for trial). Often prosecutors will provide informal discovery if they believe the defense lawyer is working towards a resolution of the case in good faith, even if the prosecutors have a closed file policy like those in Brazos County. Always get the police photos. Always view the police video. (Criminal cases have been dismissed after prosecutors realize their video did not quite match what the police report said). Always get copies of recorded audio.

What kind of relevant documents exist? What search warrant affidavits, probable cause statements, accident reports, or other public information is available? Medical records, hospital records, MHMR records, school records, and public records pertaining to the client, alleged victim, and witnesses. Obtain information and standards from governmental organizations through subpoena or open records requests. Training manuals, standards documents, and the like. For example, field sobriety testing manuals are commonly used to develop an attack upon a police officer's administration of DWI sobriety tests.

Once factual materials are gathered experts may be needed to evaluate the evidence. Forensic experts, psychologists, fingerprint experts, or others pertinent to the case. Maybe a toxicology expert in a DWI case. Certainly, a computer forensic expert in a child pornography case. DNA experts when the State is using biological evidence. The list goes on and one. The possible expenses involved with hiring experts should also be discussed with the client at the initial interview.

Once the facts are gathered the Bryan criminal defense lawyer can begin to decide upon legal theories applying to the case and brainstorming for ideas. Those topics will be next when we return to building the persuasive case.


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