WRITTEN BY : Captain Mike Schentrup (RET)
I think defense attorneys all go to the same school or follow the same Facebook page. I say this because when it comes to defense strategies during a criminal trial, it usually boils down to the same three. Now they use these three because they are somewhat effective, but usually they use them because their client is guilty, and we (cops) give them tons of examples to use during trial. Now let’s take a look at them.
Normally, the defense uses one, two, or all three of these following strategies.
- The cops didn’t follow protocol or were flat out sloppy in their investigation. This is an easy one for most defense teams because we sometimes take shortcuts. Not shortcuts in an illegal or immoral way, but we’re busy and we just make things a little simpler for ourselves. One of the main examples of this is not writing case supplements or not ensuring everyone in the chain of custody of evidence is properly documented. Things like this are just fodder for the defense. During their closing arguments, the defense attorney may say something like, “These examples of sloppy police work are just the ones we were able to uncover; we’re not even sure how many more mistakes the police made during this so-called investigation.”
- The police lied to cover up their sloppy investigation or worse to frame my client. If you’ve sat in on closing arguments from a defense attorney, then you’ve heard them call you a liar. Some attorney’s more brazen than others. Usually, the lie is about how you conducted or documented your investigation. An example might be you interviewed a crucial witness but forgot to write it in your report. I’ve done this and it was an honest mistake, but how does this look to a jury. And how can the defense spin this to the jury. “So detective, you want the jury to believe you had this vital conversation with the witness, but you never documented it?”
- The cops focused solely on my client from the start. This is a very common defense strategy and for good reason. We normally have a pretty good suspect early on in our investigations; however, this is a danger too. We must show our investigations are impartial and we looked at all evidence; even evidence that showed our suspect may not be guilty (i.e. an alibi).
No one used these defense strategies better than OJ Simpson’s legal dream team during his trail for double murder in the early 1990’s. They were remarkable and were able to get OJ acquitted even though there was overwhelming evidence of his guilt.
Now that you know the strategies, be careful not to feed into them. Be thorough in your investigation and write great investigative police reports. Document as much as you can on audio and video and keep your chain of custody for evidence really tight.
If you want to learn more, I talk about all of these and go more in-depth in each in my webinar, Homicide Mistake and Pitfalls; How to Avoid Them.