It’s a Sunday morning, so naturally my thoughts turn to trial strategy.  Some recent questions I’ve read from criminal defense lawyers have caused me to think about flawed or misguided strategies that consume time and thought (neither of which the questioners had in abundance) that detract from winning the case. In response to those convoluted, complicated, prolix approaches, I offer this advice.

KISS.  Keep it simple, stupid.  This is a principle of monumental importance in criminal defense, and one that lawyers, particularly young lawyers, ignore with regularity to the great detriment of their clients.

The more explaining a defendant is forced to do to allow the jury to reach a verdict of not guilty, the more unlikely the jury will get there. 

The basic problem is that defendant’s want to challenge everything.  Every word of a cops’ (or victims’) testimony comes under intense scrutiny by the defendant, who often has a lot of time on his hands to obsess over the allegations against him.  He will parse every word, looking for a crack that he can somehow explain away or question. 

To the defendant, the more holes he can poke in the prosecution, the more satisfaction he feels and the more likely it will be, in his mind, that he can get the other side to break down in a fit of anguish and admit that he is an innocent man.  Whether he’s innocent or not, of course, since defendant’s have a tendency to forget that they were found standing there, bloody, holding the murder weapon.  “Oh yeah,” the defendant says sheepishly, “I forgot.”

But it is the job of the lawyer to determine the strategy, not the defendant.  While some lawyers will defer to the client, whether to take the onus off of them or to please the client (for the moment), the lawyer will push whatever buttons the client wants.  The problem is that the client is ill-prepared to devise strategy.  That’s why other defendants don’t go to the client for representation, they go to a lawyer.

Judges and juries are not likely to accept the premise that the cops have singled out this one particular defendant, of all the people in the world, who the cop never met until the day of arrest, to fabricate from whole cloth a crime and charge him with it.  They don’t buy that everyone is lying about everything.  It may be true, but it is the hardest sell there is in criminal defense. 

Strategically, there is almost always a lynch pin that ties the prosecution’s case together.  It may be ID, or a single act showing intent, but it is the tipping point between conduct that constitutes a crime and conduct that doesn’t.  In any particular case, there may be a number of lynch pins of varying strength and support.

The first thing the lawyer must do is identify the lynch pin that is vulnerable to attack.  Concentrate on that lynch pin.  Your trial theory is directed at that lynch pin.  You voir dire and open on that lynch pin.  You tell the judge and jury, that’s why your client is not guilty.  And as your client writhes in pain because you didn’t attack the other 43 points that he thinks are absolutely critical, you maintain focus on the issue with the best chance of winning.

Think of this as the surgical, rather than shotgun, approach.  If you can successfully excise just one specific necessary allegation from the prosecution’s case, it fails.  If you poke a bunch of unrelated holes in the prosecution, you may weaken some of their points but the prosecution maintains its inherent vitality and the jury convicts.  Never forget that trials are not like a baseball game; they are not scored in innings (witnesses), but a “winner takes all” at the end when the verdict is returned.

By conceding issues that are theoretically subject to challenge, but highly unlikely to be winnable or insufficient to turn the jury to acquit, you focus all of your capital on the lynch pin and ask the jury to do only one thing for you, put all of their attention on the lynch pin where you plan to levy your attack.  By asking less of the jury, you will greatly increase the likelihood that they will do it for you and, ultimately, give you this one concession. 

Bear in mind that you walk into the courtroom as the defendant, and hence with the jury inherently biased against you.  They are not inclined to do you many favors.  So the fewer favors you ask of them, the less you demand, the more likely it is that they will give your argument one good hard look.  If you’ve done your job and focused your strategy on the lynch pin, that one good hard look is all that you will need.