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Defense Strategies Used by Lawyers

The practice of law rarely works the way we see it on television. The dramatic close-up of the witness as they cause the jury to gasp, the unsolicited admission of guilt by the just-arrested suspect and the courtroom scuffle between bailiff and the real guilty party all make a great screenplay, but criminal law is rather more mundane.

That said, every criminal defense attorney knows there are a few basic principles to making certain their clients get a fair trial. Some might refer to them as strategies, but by and large, these aren’t utilized to get the best of an adversary. More often they are employed to make sure a defendant doesn’t inadvertently subject themselves to harsher treatment than is absolutely necessary.


Remain Silent

The old law school joke goes that the easiest question a defense attorney will ever have to answer in their career is “the police are here, should I talk to them?” Not being legal experts, defendants are usually under the false assumption that “coming clean” or being “cooperative” is going to help them in the long run.

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What their attorney will tell them in no uncertain terms is to keep their mouth shut. The defense attorney knows nothing a suspect says can ever help them at trial. It won’t help them avoid arrest. It won’t make the prosecution less inclined to prosecute. In fact, an ambiguous answer might entangle a defendant in even more legal trouble than they would otherwise face. The first strategy for any criminal lawyer is to exercise your right to remain silent.


Facts or Law?

The second most popular law school joke is “when the facts are against you, argue the law. When the law is against you, argue the facts.” In a criminal trial, nearly every state requires that certain “elements” of a crime be demonstrated by evidence before a jury can convict on a particular charge. Pulling even a single element out of a prosecution’s case and putting it in doubt can often be enough to thwart a conviction. This is called “arguing the law,” and it can be very effective, especially against a prosecutor that isn’t as prepared as they should be.

“You testified you saw my client on Sixth Street on the morning in question. But you also testified you were more than a hundred yards away. How can you be sure it was my client?” Placing a suspect at the scene is a mandatory element of almost every crime. When the defense argues the facts of witness identification, for example, they are saying “I believe you saw someone, but I’m not sure you can say for certain it was my client.”

By choosing one of these time-tested strategies, a defense attorney can very effectively cast the prosecution’s case into doubt or defeat an otherwise plausible prosecution.


No Burden of Proof

The chief advantage of the defense is they have no burden of proof. The prosecution, on the other hand, must prove their case beyond a reasonable doubt. This is one of the reasons the tactic of “the defense rests” without putting on a defense can be so powerful. By calling no witnesses, the defense is making the statement the prosecution hasn’t proven their case. While seasoned attorneys might disagree, from the standpoint of a juror, this can be quite compelling.

Good defense attorneys know how to leverage their “no burden” advantage. They don’t have to prove their client is innocent. All they have to do, ultimately, is introduce one solid reasonable doubt into the case. If they do so, even if the jury convicts, from a legal standpoint they have nearly unassailable grounds from which to launch a successful appeal.

This advantage can be quite effective in negotiations with the prosecutor. Faced with the imperative to clear the reasonable doubt hurdle, a prosecutor might be inclined to take what they can get from the defense. That often leads to a far more favorable outcome for the defendant when compared to the conviction they might be facing otherwise.

Criminal law is far more often a battle of attrition and exhaustion than it is a dramatic revelation right before the last commercial break. Defense attorneys that know how to take advantage of their options are the people who guarantee everyone a fair trial.


Justice for our clients is our passion. Tate Law group Criminal Defense Lawyer Savannah GA is here for you if you’ve been accused of anything. Call us today!



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