By Clayton T. Robertson (Criminal Defense & Civil Rights Attorney)
I have discussed this topic with other criminal defense counsel. I limit my remarks in this blog to the relationship between fact finding and trial themes and defenses in criminal cases. (In a criminal case, the defendant is presumed innocent and the burden of proof beyond a reasonable doubt is on the state.)
One approach to building a defense in a criminal case believes that being too tied to facts and details ("facting up a case") takes away from creative lawyering in which themes and defenses are created expansively and liberally with some disregard for minutiae.
A more precise approach is when the advocate believes the most effective themes and defenses come from knowing every detail better than anyone else in the courtroom. (For anyone who knows me, this is my natural tendency.)
I find this dichotomy fascinating. I do understand that "stories" are important, but a story not grounded in facts can backfire. It destroys an advocate's credibility to the judge and jury. While it is accurate that even a truthful story contains inconsistencies, because if nothing else witnesses inevitably remember events inaccurately or incompletely or perceive events through a particular perspective, a defense that is not tied to details is bound to fail.
To obtain those "details," the advocate needs to conduct an extensive investigation and undergo a probing "discovery" process with the prosecution. "Discovery" is when you obtain all evidence in the possession of the prosecution team, including from all law enforcement personnel. It never ceases to amaze me how often the most helpful details to the accused somehow don't make their way to the defense team through this process. This is inherently prejudicial to a person's right to a fair trial.
I do respect the experiences of colleagues who take a more "expansive" and liberal approach to defense themes and building a "trial story," but if that approach comes at the cost of not appropriately working up a case, then it means not obtaining evidence that could lead to a better resolution or a different verdict at trial. This also hurts the advocate's credibility. There is no substitute for diligence.
Is there a system that combines the best of both approaches? Let's look at this logically.
- When details lead to themes, this is a form of inductive reasoning from the specific to the general.
- When themes distill downward to affect details that are investigated or emphasized, this is a from of deductive reasoning from the general to the specific.
To combine these approaches into a single system would, most effectively, result in a circular, iterative process in which you start with known facts that inferentially suggest a possible theme or defense. You then use that theme or defense to deductively investigate additional facts in support of that "working hypothesis." Depending on those results, you either scrap that theme or defense in favor of other facts that in turn support a different defense theory, or you keep that defense if it appears you are on your way to finding the truth. But you must continue your investigation to confirm these results, or you find other avenues of investigation for other possible themes and defenses. In this way, an advocate is constantly cycling through an inferential and deductive process for a more effective outcome.
