There are only three accurate defenses to any crime: conjectural (no, I didn’t do it); qualitative (yes, I did it, but [I was crazy][it was self defense][etc.]; yes, I did what you say I did, but my act does not amount to the crime charged (not a common defense). Then there is the procedural defense, which seeks to eliminate vital evidence without which the trial case falls apart.
You could call the four issues whodunnit, whydunnit, what-of-it, and how-prove-it. It is in the realm of how-prove-it that a creative defense attorney can catch the prosecution with their britches at half-mast. When the defense produces an overlooked technicality to torpedo a prosecution, the defense attorney gains a status for intelligence, but this type of wisdom requires the “cooperation” of the prosecutor. Prosecutors who do their due diligence before trial rarely get trapped. They see the drawbacks and deliver against them.
So when you see a lawyer win a case with a “brilliant” ploy, the win is more likely due to the statistic that the winner either has more experience or has prepared more attentively than the opponent than it is to superior wisdom on the part of the winner.So, in my opinion, the keenest defense is the best-prepared defense. Now if you add a little common sense to a lot of preparation, you can have a actually brilliant defense. For example, There are lawyers who won robbery cases without making an opening statement, cross-examining any prosecution witnesses, without any defense witnesses, and making no final argument.
They win the case because they are better prepared than the opponent prosecutor and they had a good head on their shoulders. Here’s how they win: First, they reserve opening statement until after the prosecution restore. Then, as they listen to the direct examination of each witness, they notes that the prosecutor is leaving out tons of impeaching evidence. When their chance comes for cross-examination, they feel that cross examination could only help to strengthen the prosecution case by bringing out the neglected incriminating evidence. When the prosecution gets relaxed, my they will move for a judgment of release on grounds that the trial had failed to make out a prima facie case and therefore they win their case with the little-used what-of-it defense. This is what we call a real smart work.
Most defense attorneys knows would perhaps have cross-examined and brought out enough additional evidence to allow the prosecution to get the case to the jury. A lawyer was defending a man who had accidentally killed his cousin in a stupid, drunken game of Russian roulette. Instead of having only one cylinder of the single action revolver loaded, they had all six loaded. But the gun wasn’t supposed to fire because they were only cocking it to the half cock, or “safety” cock, position. Against expectation it fired and one of them died. The charge was culpable negligence manslaughter.
He found as a silly case that said if you thought you knew how to handle a gun and accidentally shot and killed someone, it was justifiable homicide. That case was his legal argument for acquittal that I was going to produce to the judge. The emotional argument he was going to make to the jury was “See how hard my client cried after the shooting? He didn’t mean to do it!” This, of course, was no defense at all, but maybe the jury would feel sorry for him & give him a break. Crying after a culpable negligent act cannot possibly negate the fact of culpable negligence. “A good jury argument,” he thought, “but one which an appellate court would laugh at.” The judge wasn’t impressed with his legal defense, nor was the jury impressed with his emotional defense, and his client got 15 years. Round one to the prosecution; now on to round two. The appeals court reversed. And why did they reverse? Because his client cried! A totally irrational decision. Just as his client accidentally killed his cousin, he accidentally won the case by stressing the logically irrelevant fact that he cried after the killing.
Outcome: The Jury make note of the fact that how present the case in front of them to defend your client.
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