Preparing for trial shouldn’t involve simply reviewing discovery. Rather, the defense should use various investigative means to present the best possible case.
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.
If done properly, trying to interview prosecution witnesses can be an effective investigation technique.
We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.
Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys January 2015
S e n t e n c i n g P a r t n e r s
The Morales Law Firm would like to share this article by Jim Carlton published by the Wall Street Journal.
We would like to thank our friend Jeffrey B. Kahn, Esq. for sharing this information with us!
The Morales Law Firm would like to share this article "Your rights if arrested" published by NOLO for all.
When most people think of an “arrest,” they envision a police officer cuffing criminal suspects and placing them in the back of a police cruiser. But there’s more to an arrest than taking a suspect into custody. Arrests trigger legal (and emotional) after-effects that include detailed and specific police responsibilities.
What Does it Mean to be Arrested?
A person who reasonably believes that they are deprived of personal liberty and is not free to leave police custody is considered to be "under arrest." A suspect doesn’t need to be cuffed or physically restrained to be under arrest. Nor do the police have to announce the fact. What matters is whether a reasonable person in the same position would believe that they are not free to leave.
Consider a woman who drives to the police station and volunteers to answer questions. At some point, the woman stops answering questions and wants to leave. The police tell her she cannot leave the room until the questioning is finished and when she stands up, an officer motions with his hand for her to sit down. The police actions amount to an arrest.
Not all detentions by the police amount to an arrest. The police may detain an individual in order to issue a citation, for example, for minor traffic infractions or for some criminal misdemeanors. A citation, once signed by the suspect, amounts to an agreement, in lieu of an arrest, to appear in court at a later date. This temporary detention is permissible but is not considered an arrest (although it may still trigger the police officer’s right to search the suspect, as explained below).
How are People Arrested?
An arrest occurs once the police have enough evidence to establish probable cause—a reasonable belief that the suspect has committed a crime. On TV, most arrests are usually made when a suspect is directly observed performing criminal activity and is arrested in the act (or immediately afterwards). In real life, there is often more time between the criminal act and the arrest, as the police investigate the details or as evidence is provided. As a general rule, arrests made at person’s residence require an arrest warrant and also require that the police “knock and announce” their purpose. However, these rules need not apply in urgent situations, such as when evidence may be destroyed or individuals are in danger. An arrest warrant is a court order issued by a judge, based upon statements made under oath (and establishing probable cause).
What Happens Once an Arrest is Made
Every person who is arrested in the U.S. and who is questioned by police must be informed of their legal rights (known as "Miranda Rights," discussed below). In addition, once an individual is arrested, the police may search the person incidental to the arrest. That's because police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. This is even permitted when an officer arrests an individual for a minor offense that results in a citation and not an arrest.
If a police officer does not have probable cause to make an arrest, it is possible that a judge may declare that the evidence seized incidental to the arrest is inadmissible at trial.
What's the Miranda Rule?
If a suspect is under arrest (in police custody) and is being questioned (interrogated) about the criminal activity, the police must inform the suspect of certain Constitutional rights (known as "Miranda Rights"). These rights are summarized in the following statement:
"You have the right to remain silent. You have the right to have an attorney present when we question you, and if you cannot afford an attorney one will be appointed for you. If you waive these rights and talk to us, anything you say may be used against you in court. Do you understand these rights?"
A suspect need not be “Mirandized” if the suspect has not been arrested. The same is true if the suspect has been arrested, but has not been questioned. If a suspect refuses to answer questions after receiving a Miranda warning, the police may return—typically within two weeks—and provide the Miranda warnings again and see if they have better luck. If a suspect asserts rights under Miranda—for example, refusing to talk unless an attorney is present—statements elicited by the police without the attorney present would usually be inadmissible in court.
How Does an Arrested Person Obtain Freedom?
The only way to obtain freedom after an arrest is if the government dismisses charges against the individual, or, assuming that does not occur, if the suspect follows legal procedures that lead to freedom. These legal procedures may include releasing the suspect on bail, or a release based on the suspect’s own recognizance (“release O.R.”). And, of course, freedom may be obtained by proving the suspect’s innocence, or by entering into a plea bargain that permits release from custody.
Phillip Chism, the Massachusetts high school student who is accused of raping and killing his math teacher, allegedly attacked an employee at a youth services facility in Dorchester, where he is being held pending his trial, the Essex County Sheriff's Department said Tuesday.