Countering incriminating evidence
Strategies, arguments, and forms for:
- identifying weaknesses in the prosecution’s case
- extracting concessions in pretrial motions and hearings
- cross-examining government experts
- defending specific crimes
- mitigating the offense at sentencing
- and much more
Thomas J. Farrell’s Criminal Defense Tools and Techniques is loaded with proven angles of attack that will improve your effectiveness in all stages of your representation … from initial interview through sentencing.
Mr. Farrell supports his strategies with pattern argument language, model questions, 130 forms, real-life examples, checklists, and 1,400 case citations. Here is a small slice of what he covers:
- Dealing with pressure to cooperate. §1:06
- Conducting a disciplined, searching initial interview. §1:10
- When to consider a joint defense agreement, with form. §1:41
- 4 pattern engagement letters. §2:01
- How to win bail hearings, with questionnaire. §4:40
- Dealing with a past non-appearance. §4:42
- Double-verifying your client’s status. §12:11
- Your 4 goals in the pre-indictment representation of a target. §12:21
- The few times when a target should testify. §12:23
- 4 strategies to consider when representing a subject. §12:31
- Preparing your client to testify. §12:102
- What to ask your client after the hearing. §12:120
- The perjury trap. §12:136
- Avoiding collateral consequences. §17:12
- When you cannot trust the prosecutor or his agents. §17:22
- Implementing a prosecutor’s agreement to take no position at sentencing. §17:24
- When to consider a bench trial on stipulated facts. §17:32
- Protecting the cooperator with an attorney proffer. §17:64
- Avoiding miscommunications at the debriefing. §17:64
- Creative options for avoiding a plea agreement, cooperation, or diversion. §17:72
- Gaining your client’s trust in your plea recommendation. §17:83
- Preparing your client for the plea. §17:88
- Advice on off-the-record agreements. §17:102
- The best defense theories. §20:10
- When you want a bench trial. §20:31
- Last-month trial preparation checklist. §20:40
- How to resolve the defense dilemma when a legitimate challenge to seating a juror is denied. §20:82
- How to preempt the judge’s rehabilitation of jurors. §20:82
- Tips for a persuasive opening. §20:102
- How prosecutors will attempt to introduce informant and victim hearsay, and how to respond. §20:121
- Tactics to avoid admission of prior bad acts, with motion in limine. §20:131
- Escalating techniques for cross-examining the difficult witness. §20:150
- How to attack a witness’ credibility. §20:160
- How to gain admission of an inquiry into the sordid facts underlying a witness’ conviction. §20:165
- Establishing and highlighting the witness’ incentive to please the prosecutor. §20:170
- Cross-examining prosecution experts. §20:180
- Defeating prosecutors’ cross-examination tactics. §20:230
- 4 tactics for handling a sentencing. §22:13
- Sentencing alternatives. §22:21
- When to waive a presentence investigation and report. §22:32
- Challenging the PSIR. §22:35
- How to use three devices to humanize your client. §22:40
- Obstacles to concurrent sentencing, with solutions to the problems. §22:60
- Preparing for the sentencing hearing. §22:90
17 practice tips from the book
- Questioning techniques. “Listen and observe. Note which questions your client answers directly and which he evades. Answers like, “I would not be so stupid as to . . .” or “I would never . . .” or “How could I ever get away with . . .” are not forthright answers. While you should not jump to conclusions, such answers indicate that either the question or its answer makes your client very uncomfortable. Take note. Observe, too, at which questions your client changes his demeanor or gesticulations. Fidgeting does not necessarily signify anxiety for the naturally fidgety, but when the fidgety become still or the still fidgety, something has disturbed them.” §1:11
- Preparing for bail hearings. “The prosecutor, judge and even the bail agency usually base their recommendations and decisions on the seriousness of the current charge, prior criminal record, past failures to appear, parole/probation status, and whether there are pending charges. Misunderstandings are the rule, and good lawyering can bear excellent results. Bail hearings are won not by constitutional arguments or statutory parsing, but by the presentation of accurate and corroborated facts. Investigate your client’s criminal record thoroughly and verify everything your client tells you. Use this form questionnaire to be sure that you cover all the topics….” §4:40
- Obtaining bail for serious crimes. “Many judges think, without voicing the thought, that detention does little harm because your client will serve substantial time. Rebutting this assumption may require you, even at this early stage, to challenge the prosecution’s case on guilt. Do not lay out an affirmative defense at this early juncture because doing so gives the prosecution an opportunity to elicit and note the details and then work to investigate and rebut the defense later. Rather, attack weaknesses apparent on the face of the charging documents, such as a reliance on stranger identifications or informants who stand to gain from their testimony. Suggest conditions that will address the judge’s concerns: (a) Home detention with a monitoring device. (b) A curfew. (c) A prohibition against contacting witnesses and victims.” §4:70
- Bail hearings for minor offenses. “A vexing problem arises when the client has a history of nonappearance or transience. The judge likely will impose a bail your client cannot make, which creates tremendous incentive for your client to plead guilty at the earliest time possible and reduce his jail time. If the plea offer’s terms are too harsh or issues exists as to your client’s guilt, explore whether a relative might act as third-party custodian or whether social services are available and can be combined with pretrial reporting requirements to create an acceptable bail package. This may entail finding your client a place to live or gaining his admission into an inpatient drug treatment program and making continued residence at that address or in the program conditions of release. You might also try making a strong argument as to your client’s innocence or the success of a particular defense at an initial appearance or bail hearing. Everyone expects such a case to be resolved sooner or later by a plea or dismissal, so neither the judge nor the prosecutor will give attention to representations made at early appearances in order to use them against the defense later. Remember, your argument, at least aloud, is not that since the charge will not stick, who cares if your client fails to appear; rather, your client knows he will be cleared; therefore, he has strong incentive to return to court.” §4:73
- Challenging reliability. “Raise a common law unreliability claim in those instances where you have evidence of your client’s inability to make an intelligent statement due to some impairment or where you have independent evidence that your client’s statements were false. Argue that the common law rule recognizes the misleading potential of admitting such statements and therefore entitles you to a pretrial hearing on the issue and a judicial determination of admissibility.” §8:47
“Mounting an involuntariness claim calls for substantial
- If your client claims physical abuse, document this as soon as possible by having his injuries photographed and having a medical examination.
- Many police stations and jails sign-in detainees. Subpoena those records to show how long your client was interrogated and whether he was removed from the premises for some reason.
- If your client has a disability, obtain medical and psychiatric records. You might want to retain a psychiatrist to interview your client and report on his IQ and other mental conditions.
- Subpoena all officers who participated in the interrogation. The prosecution likely will call only the officer who played “the good guy.” §8:49
- Undocumented admission.
“Sometimes, an officer will testify to a confession or
particularly damning admission that does not appear in any report or notes.
Attack such testimony aggressively to suggest that the officer is mistaken
or even lying. Make the following points, which you can prolong or
abbreviate as you see fit:
- The statement purportedly was made months or years ago.
- The officer has participated in scores of arrests and investigations since then. If yours is a routine type of case, have the officer agree that many of them, like this case, have been the same type of case (e.g., drug arrest, assault, domestic dispute, etc.).
- In the course of those investigations, he has interviewed hundreds of arrestees, suspects and witnesses.
- He knows through experience and training that an arrestee’s exact words are important evidence.
- He is trained to write reports, and routinely does so, to preserve evidence important to a case.
- He relies on those reports to recall what happened in an investigation that may have occurred some time ago; other officers and prosecutors rely on those reports to investigate and to put together a case; and the law requires that the prosecutor turn over the reports to the defense so that the defendant and his lawyer will know what evidence they are facing and so they can prepare their defense.” §8:61
- Attacking recorded confessions.
“The outline of your closing argument is:
- Before the police began to work on him, your client insisted he was innocent.
- The police did not accept that and began to work on him.
- Here are the techniques the police used to break down his will.
- The police already knew how the crime was committed (list each fact they knew).
- The police, as you saw on the tape, fed your client the facts they already knew and got him to agree with them.
- He did not agree because those facts were true, but because after so many hours, even your client, with all his mental deficiencies, realized that it was the only way to stop the interrogation and get the police off his back.
- The police could have chosen to record the entire interrogation to let you judge, but they did not want you to see my client’s insistence on his innocence and the techniques they used to break him down.
- Therefore, this so-called confession is just the police story, put into my client’s mouth. You cannot trust it or what the police did or told you about what they did.” §8:62
- Counsel’s job. “Your role
at a lineup is to witness, suggest, disagree and criticize. Get the
names, addresses, and phone numbers of the fillers and all persons
present at the lineup. The witness may bring friends for support, who
may have planted suggestions in his mind. Those friends may themselves
be witnesses to the offense, and their presence at the lineup may taint
their testimony. Try to interview everyone present.
- Comment on the suitability of the fillers. Make sure they resemble your client closely in age, skin color, facial hair, clothing and size. If your client differs in height, ask that the participants be seated.
- The police may ask for your agreement that the lineup is a fair one and the fillers suitable. Do not agree. The police will be sure to tell a judge and jury that you agreed to the fairness of the lineup from which your client was selected. You can always find something to criticize. Pick any difference in appearance and make note of it. If the police do not ask, volunteer your objections to the lineup so that they cannot represent later that you acquiesced.” §9:06
- Discovery motion arguments. “Among the arguments that appeal to some courts’ discretion:
- You cannot competently advise your client on whether to plead guilty without having additional discovery, such as the witnesses’ or coconspirators’ statements. Having that material sooner rather than later may result in an earlier disposition of the case and conservation of the court’s resources.
- This is not the kind of case in which your client poses any danger to the witnesses.
- You need the discovery sooner rather than later because you need to conduct factual investigation and file motions in limine regarding the evidence’s admissibility. If you do not receive the material until trial starts, you may need a continuance to investigate.
- Obtaining the materials well in advance of trial will enable the parties to focus the issues, reach stipulations and otherwise expedite the trial. This argument is particularly appropriate if the materials are voluminous.” §14:01
- Alternative to appeal waiver. “You are justified in accepting an appeal waiver if the plea agreement confers a benefit that you are unlikely to receive without the government’s agreement, such as waiver of a mandatory minimum sentence, dismissal of a count that carries a severe collateral consequence or jacks up the sentencing guidelines, or an agreement to forego provable aggravating factors or to stipulate to controverted mitigating factors. As an alternative, consider pleading to the indictment, even if that means pleading to more counts of conviction than the prosecution would insist upon in a negotiated plea. Indictments often contain duplicative counts that are likely to merge at the time of sentencing.” §17:31
- Failure to make bail. “Counseling and bargaining for the defendant jailed on a relatively minor charge can be one of your most difficult challenges. Your client’s detention may threaten loss of his job and the welfare of his family. The desire to get out may encourage him to plead quickly, but perhaps to a more serious charge than he should. The prosecutor may dangle the offer of a plea to the most serious charge and a sentence of probation in front of your client. Often, this is a bad choice because the top charge might carry serious collateral consequences and implications for recidivist sentencing upon a subsequent conviction. Further, probation can be onerous, and clients who regularly engage in petty crimes, such as drug use, prostitution, larceny or vandalism are certain to violate it and face a much lengthier term of incarceration. Such clients are better off postponing a plea until a later court appearance when the prosecutor likely will reduce the charge and offer time served or a brief period of incarceration.” §17:40
- Immigration consequences. “You can control deportation consequences to some extent by the terms of a plea bargain or what is stated on the record at the time of the guilty plea colloquy. For example, fraud offenses are aggravated felonies if the loss amount exceeded $10,000. Negotiate a plea to a count that states no loss or a loss less than $10,000, then stipulate that the loss was an amount less than $10,000. This will work even if your client pays restitution in an amount in excess of $10,000. [See Chang v. Immigration and Naturalization Service, (INS), 307 F.3d 1185) (9th Cir. 2002, 1190-91) (INS could not look behind plea stipulation to loss of $600 to agreement to pay restitution of over $32,628.67 for counts of the indictment for which defendant was not convicted to classify offense as an aggravated felony).] This requires the prosecution’s cooperation, but you can offer the restitution as incentive.” §17:53
- Attack all upward adjustments. “Complex real offense systems, which attempt to account for myriad factors, spawn the prospect of protracted litigation, and you can exploit the fear of such protraction. Attack upward adjustments on legal and factual grounds and push the prosecutor to stipulate to facts which will lower the guideline range. A point off here and there may not mean much to the prosecutor and may save him a lengthy hearing and appeal, but it will mean months or even years less in prison for your client. Begging does not work; you must support your arguments to the prosecutor to forego upward adjustments or not to oppose downward ones with references to case law and the case facts, because the prosecutor must justify the guideline stipulations to the judge, but more importantly, to her supervisors.” §22:13
- Presentence interview. “Clients should not answer questions about either their criminal history or about the offense conduct. Clients often deny guilt of crimes to which they pleaded guilty, and sometimes in good faith assert that a case that resulted in a conviction and time served was “dismissed.” These inaccuracies can lead the presentence investigator to characterize your client as dishonest. Further, clients may inform the investigator about crimes that never would have been discovered (e.g., crimes in other states or convictions in local courts or before the minor judiciary). When asked, you and your client must answer honestly. Therefore, the best strategy is an across the board refusal to address the topic. Statements about the crime of conviction may similarly entangle clients….” §22:33
- Humanizing your client. “Provide the judge with a sentencing memorandum that reads as a narrative humanizing the client, explaining his offense and suggesting how he, with the court’s help, will avoid recidivating. Aim at three purposes in the narrative:
1. Show that your client is more than just his worst day.
Your client’s crime represents the worst he has to offer; he is more and better than that. Tell the court about the good works he has done for his family and community and how he prevailed over various hardships or how disappointments oppressed him. Support this section with citations to letters from friends, family, community leaders and persons whom your client has assisted….” §22:41
- Your client’s testimony. “‘Grovel or keep quiet’ is the best advice to your client. Clients often hurt themselves more than help. Clients want to tell the judge that they really are good people and that the offense was atypical of them, that other forces (e.g., a bad marriage, depression, drug and drink, or evil friends) led them to commit this crime. Do not let the client say any of this. It usually alienates judges by sounding like excuse-making. Let other witnesses (family, friends, therapists) describe the good side of your client and explain what led him to commit his crime. The main things that judges want to hear from defendants are remorse, shame and a resolution that they will do whatever it takes to avoid relapse. Your client succeeds if he makes a brief and sincere-sounding apology to the victims and the court. Do not underestimate how difficult this will be for your client. Articulate, educated clients are most at risk of saying the wrong thing. … Defendants convicted of street crimes have the best chance to persuade the court because the judge does not expect much from them. If they can sound….” §22:97