Trial advocacy skills can make the difference in a tough case. They should be learned and practiced. But there is nothing more important than pretrial preparation. This post concerns the most critical pretrial preparation task: you must change the “facts.”
When you get a case file, it consists of what the prosecution and investigative agency believe the “facts” are. You must change the “facts.” And you must investigate to do so.
Your investigation, at a minimum, must find: facts that were overlooked and facts that discredit the Government’s “facts.”
Overlooked Facts. Tunnel vision is real. And it has and will continue to lead to problems in the criminal justice system. Because of tunnel vision, it’s easy for prosecutors and investigators to disregard evidence that doesn’t match up with their theory, especially when there is a confession. Capitalize on this by conducting your own investigation. You’ll be amazed at what you find. (I once discovered a witness who had been standing next to the “victim” during the alleged assault that the investigators overlooked who, in no uncertain terms, stated the assault did not happen.)
Facts that Discredit the Government’s “Facts.” Look for facts that explain away the Government’s “facts” or at least lessen their sting by putting them in context. You should also look for facts that directly discredit the Government’s “facts.” If you’re lucky, you may even find facts like these:
My law school didn’t teach me how to conduct a proper investigation (and yours probably didn’t either). Yet it is such an important part of our work. Here are a few things I’ve learned about investigating a case the past few years:
- Go to where the alleged crime happened. This is a must. You need to see it for yourself. And, while there, take photos and talk to people.
- Interview witnesses in person. You learn so much more about someone in person. And make sure you use a recorder.
- Devour social media. It’s incredible how much is out there and what people are willing to share.
- Earn the trust of your client and, only then, have them recount what happened. Psychodrama is an excellent tool.
If your client has the means, hire an investigator. Not only will a professional investigator be more adept at investigating, they will also be able to testify should the need arise. A good investigator is worth their weight in gold. Here is a neat trick seasoned investigators use:
A written statement bearing a witness’s signature is a handy device to have in hand when the witness seeks to vary his story on the stand. He may well claim that the investigator wrote out the statement, that the words it contains were the investigator’s and not his own, or that he didn’t read the statement carefully before he signed it.
Because of the frequency of this last excuse, most experienced investigators make at least one obvious mistake on each page of the statement and then allow the witness to discover, correct, and initial these mistakes as he goes through each page before signing. This technique usually disposes effectively of any witness’s claim that he didn’t examine the text.
-F. Lee Bailey, To Be a Trial Lawyer 90 (1994).
A thorough investigation is a must. It will help you change the “facts,” which will help you win at trial. And, depending on what you find, may even help you avoid trial altogether. There’s nothing better than that:
“I’ll tell you what a great trial lawyer is. He keeps his client from going to trial in the first place. That’s victory.”
-Edward Bennett Williams
Make investigation a priority, and keep up the good fight.