An Approach to Criminal Defense Strategy
How Can My Criminal Charges Be Defended?
If you are facing criminal charges, whether it is a misdemeanor or a felony, you know that the stakes are high. The criminal defense strategy will differ with each case, but if the case proceeds beyond an early plea bargain or dismissal, the approach to each case is identical.
The penalties for conviction carry serious and often life-long consequences that can -depending on the severity of the offense- impact your wallet, your personal and professional reputation, your education, your future employment, your driving privileges and fundamental rights including your freedom.
So, what are some general strategies to defend a criminal charge in Massachusetts?
We defend people accused of crimes ranging from simple misdemeanor offenses such as Minor in Possession of Alcohol and Sex for a Fee, but also people accused of extremely serious crimes such as Murder, Drug Trafficking and Motor Vehicle Homicide While OUI (and everything in-between).
In every case – at every stage of the proceedings- both the facts and law must be scoured to identify issues that will maximize your chances of success both prior to and during a trial.
Attack the Elements
A crime is, by definition, “any act or omission (of an act) in violation of a local, state or federal law forbidding or commanding it.” The “elements” of these crimes are defined by statute and the government needs to have had ‘probable cause’ to arrest, and produce evidence ‘beyond a reasonable doubt’ to convict, as to each individual element of the offense.
So, for example, while an OUI/DWI can be won for lack of evidence of impairment by alcohol, it can also be won if the government can’t prove any of the other three elements: ‘operation’ of a ‘motor vehicle’ on a ‘public way’. This principle applies equally to any criminal charge, from shoplifting to First Offense OUI to Sexual Assault.
It is crucial to identify and request all of the evidence to which a defendant is entitled, and work to excludeas much of it as possible with well-crafted motions specific to your case.
It is also not sufficient to accept the government’s evidence at face value, as an independent investigation may develop additional evidence that can undermine the government’s criminal case against you. Often, experts can be used to further your cause.
Everything that is done during the case is with the singular purpose of attacking the elements of the offense to obtain either an outright dismissal or a “Not Guilty” verdict at trial.
If the decision is made to accept a plea bargain, it is always better to negotiate from a position of strength.
Criminal cases have constitutional dimensions, in particular the Bill of Rights. The Constitution, and the case law interpreting it, limits what the government can do and requires them – the police, the prosecution and the court- to do it in a certain way.
A motion to dismiss for lack of probable cause is based on the 4th Amendment, as are motions to suppress evidence seized without a warrant (or with a defective one).
A motion to suppress statements a defendant may have given to the police can be based on the 5th Amendment right against Self-Incrimination or the 6th Amendment right to a criminal lawyer.
You have the right to cross-examine witnesses at trial because of the 6th Amendment’s Confrontation Clause and the right to bail before trial because of the 8th Amendment … and so on.
The Bill of Rights was, by design, broadly written and a creative attorney can use the law interpreting it to challenge the probable cause to arrest you or to exclude key pieces of evidence against you, both prior to and during trial. The Massachusetts Constitution, which often provides more protection than the Bill of Rights, must be considered as well.
If constitutional issues are not preserved during the course of your case – either because your criminal defense attorney didn’t identify the issue or didn’t assert it properly- they are, with some exception, waived for the purposes of appeal or subject to a much stricter standard of review.
If your case does go to trial, you want an experienced criminal trial attorney who has worked from the outset to know the law and facts of your case better than anyone else in the courtroom. It is a matter of preparation, communication, experience and an ability to think on your feet in the midst of a fluid, stressful and often acrimonious setting.
Evidence that may have passed constitutional muster can still be excluded under the Rules of Evidence, Criminal Procedure or statutes applicable to its admissibility and it is crucial for your criminal defense attorney to have an intimate knowledge of the appropriate objections, which often need to be formulated and asserted in a split second.
The failure to object will result in evidence being used against you that could have been excluded, and the failure to preserve the issue will destroy your chances of a successful appeal.
To the extent evidence can’t be excluded, it must be attacked at every opportunity. An experienced trial attorney will often be able to decimate the credibility of government witnesses on cross-examination and, if appropriate and necessary, offer counter-evidence in support of your innocence.
All of this must be done in a way that lends credibility to you and your defense in front of the jury that will ultimately decide your fate.
If you are under investigation or have been charged with a crime, the lawyer you choose is the single most important decision you will make.
At Equitas Law, our attorneys have been dealing with criminal cases at both the trial and appellate level for over 20 years, as a Prosecutor, a Criminal Defense attorney and as a Special Prosecutor.
We're happy to discuss your case at no cost to you. Please call or text 617.723.4163 or fill out the Contact Form.
Where you can find us
1583 Beacon Street • Brookline • MA 02446
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