How Active Should A Criminal Defense Be?
Posted on: 25 October 2021
The popular image of a criminal law attorney is of someone who fights tooth and nail to destroy the prosecution's case. In the real world of criminal law, however, extremely active defense isn't always the best approach. This article looks at why that is and how your attorney is likely to approach the question of just how actively they should be fighting the prosecution's arguments.
Making the State Do Its Job
It's important to remember the defense bears none of the burden of proof in American criminal law. The prosecution, on the other hand, has to meet the highest standard of proof in the entire American legal system. They have to prove their case often beyond a shadow of a doubt in criminal law.
A prosecutor has a job to do, while a defendant can pick and choose their spots. You don't have to fight all the evidence or arguments. Instead, you just have to see if the prosecution has a case. Even if they do, do they have a strong enough case to convince a jury?
Affirmative Defenses
There is one notable situation where the defense can take on the burden of proof. This happens if the defendant asserts an affirmative defense. When someone makes an affirmative defense, they assert specific facts that are either true or false.
Suppose the prosecution alleges you were at the scene of a crime. You don't have to explain where you were. Instead, the prosecution has to prove you were at that place and at the right time to have committed the alleged offense.
However, if you assert you were in a different county at the time, that becomes an affirmative defense. It sometimes is a great idea, especially if you and witnesses can back it up with evidence and testimony. If the prosecution disproves your claim, though, it can destroy your whole case. This is a major reason why a more active defense may not be desirable.
Letting the System Work
The U.S. criminal law system requires the prosecution to deal with several milestones in bringing a case. The earliest is at arraignment when the prosecution has to explain why you deserve to be charged. An attorney will usually be very active in this phase because it's a chance to question the police and expose possible problems in the case.
You'll also have an opportunity again during discovery when the prosecution has to show you what it has for evidence and witnesses. Generally, you don't want to commit too actively to a particular defense until you've seen the discovery materials. Reach out to a criminal law attorney for advice.
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