Preparing for trial shouldn’t involve simply reviewing discovery. Rather, the defense should use various investigative means to present the best possible case.
By Paul Bergman
Interviewing prosecution witnesses can be a critical component of preparing a defense in a criminal case. But there are other forms of investigation that might also provide or reveal essential information. The defense might:
- Bring in a scientific expert to test evidence or review the work of others, including, for example, police laboratory technicians. It’s often beneficial for such an expert to testify, too.
- Hire a private investigator to locate and interview witnesses who are—or could be—helpful to the defense. The defense attorney might then be able to meet with those witnesses and prepare them for their eventual testimony. The defense can also serve them with subpoenas that require them to appear in court to testify.
- Take depositions of friendly or neutral witnesses—in the rare states that allow depositions in criminal cases. These depositions can serve several purposes, including preserving testimony should witnesses later become unavailable or change their stories.
Costs and Benefits
Whether to incur the costs associated with investigative tasks is a judgment for each defendant to make. The defendant should try to determine the likely costs, the chances the tasks will help the case, and the cost (literal and figurative) of conviction. In most instances, it makes sense to do anything within the rules to help your chances at trial. Even if a conviction doesn’t carry jail time or a significant fine, it usually has long-lasting ramifications—for example, making finding a job more difficult.
Hunting and Gathering
Defense attorneys must often pry documents loose from government agencies and private businesses. Those who need to obtain relevant materials from uncooperative people or offices can serve them with subpoenas duces tecum. This term refers to a court order requiring the person or organization in question to deliver the specified documents, records, or objects to court for the judge, defense, or both to inspect.
Subpoenas duces tecum don’t always work the first go round. Some parties who receive them file motions to “quash,” while others simply ignore the subpoenas. In these instances, the defense typically has to file a pleading asking the judge to order the third party to comply with the subpoena. This often means persuading the court that the requested materials are important to the defense’s case or narrowing the information requested in the subpoena. For example, a defense attorney requesting cellphone records of a witness might have to explain that the records could show that the witness was on the phone at the time she claims she was meeting with the defendant. If the phone company objects that the defense has requested too much material, the attorney might have to narrow the timeframe for the requested records.
Others Who Can Help
Plenty of professionals other than lawyers, experts, and investigators can be vital to criminal cases, including but not limited to:
- photographers (who can document, for example, the scene of the crime)
- jury consultants (who help the defense attorney pick the jury)
- trial presentation specialists (who help the defense display information at trial, usually through use of computers), and
- sentencing experts (oftentimes former probation officers who help the defense present a convincing case for a lenient—or at least reasonable—sentence).
Get a Lawyer
If you’re facing criminal charges, consult an experienced criminal defense lawyer. Only such a lawyer can protect your rights and effectively investigate your case. An attorney will also be able to tell you what you should—and shouldn’t—do to help. For example, your lawyer may ask you to provide all the information you can possibly think of regarding witnesses, locations, events, and even people who have nice things to say about you.