What makes a great Michigan criminal defense attorney? Part 4: Trial Defense

Criminal trial attorneys are a special breed of attorneys who think quickly on their feet and can adapt to a situation under pressure. They can analyze a situation in real time during the ongoing trial. A skilled defense attorney has to pay attention to current testimony while at the same time recalling the mountains of evidence. It takes an agile mind and a sharp attorney to be able to handle the mental gymnastics of a trial. Many defense attorneys avoid a trial because of the pressure. Some are even afraid to be the center of attention. They shouldn’t be defense attorneys.

Just as a surgeon has many tools available to treat a patient’s condition, your criminal defense attorney must be willing and able to use all of the tools. A surgeon doesn’t use all of them all of the time. But, they are available for use depending on the what the patient needs. A doctor doesn’t always use a scalpel, but it is there if necessary to properly treat the patient. He or she knows what is best. Like a surgeon, a good trial lawyer has to have the skill and confidence to use all of the tools. That means that the lawyer has to be ready and willing to take a case to trial. Trial lawyers operate in the courtroom and a trial is but one of the tools available.

Your lawyer needs to be able to think on the fly, speak well, and assert confidence. A really good trial lawyer has to know the rules of evidence, the judge’s disposition, the facts of the case, the law while staying focused on the events in the case. As I said earlier, a trial is an exercise in mental gymnastics. A trial lawyer has to keep track of a thousand things while projecting a calm and relaxed confidence.

Trials are not easy endeavors. Unfortunately, many lawyers who try cases are not very good. This has been the point of these 4 articles. Choose your attorney carefully. We have provided you with a framework to use when you choose an attorney to defend you. There are many variables that you should consider. One thing, however, is definitely true. Although a strong character and an agile mind are important, it is equally important that the jury like your attorney.  When you meet with an attorney you should let your instinct guide you. You know when someone rubs you the wrong way. Trust me, a jury will feel the same way.

A jury must like your defense attorney. It become critically important that your defense attorney possess the ability to understand people. A trial is a play of sorts. There are actors A great trial attorney must be keenly sensitive and aware of his or her audience, that is, the jury, and the message that they are receiving. A great trial attorney must be aware of the verbal and nonverbal messages that are being sent to the jury. While diligent preparation is necessary, preparation without an understanding of how the jury perceives the attorney can be a problem. Juries do not like to be talked to in a condescending way. A great trial attorney must understand his or her audience and be a credible storyteller. The attorney must know how to tell your story in a concise way that avoids confusion.

A good trial lawyer has to be good with people and that means more than being a “people person.” A good trial lawyer needs to be able to read the jury and gauge their nonverbal cues. A good trial lawyer knows when to be tough and when to be kind, and is effective at both. Experienced criminal trial lawyers know not to waste the jury’s time.

At the beginning of this series, I explained that location, preparation, and investigation are things an attorney must do in order to be a great defense attorney. When your attorney prepares, investigates, negotiates and creates a sound defensive theory - you benefit. There is always a point in a criminal case where the plea negotiation is at its best. This means that the plea offer will not get any better. Similarly, the likelihood of conviction at trial can be fairly assessed. It takes time and experience to learn the appropriate time to settle or go to trial. A legal defense to a criminal charge takes time to develop. There can be a fine line between success and failure at trial. The purpose of these articles is to show that a great Michigan criminal defense attorney can win through preparation, investigation, negotiation, and a strong trial defense. The attorney you choose that has the experience and dedication to criminal defense can and will get you the best results.

What makes a great Michigan criminal defense attorney? part: 3 Preparation of Trial Defense

If there is one key to increasing your chance of winning at trial, it is your attorney’s preparation.



Intense preparation can even the battle field or even tilt it in your favor.“ In preparing for battle I have always found that plans are useless, but planning is indispensable.” – Dwight D. Eisenhower, 34th President of the United States, and former General of the Army. The key is to examine every angle of the case so as to anticipate and adapt to things that happen during a trial.

To follow-up on the military analogy, "Intelligence Preparation of the Battlefield" is a term used in the military that defines the methods used to reduce uncertainties concerning the enemy, environment, and terrain. Battlefield preparation is a continuing process that is used throughout all military operations. A criminal trial is analogous to a battlefield. By design, the trial is an adversarial proceeding. It is a battle for your freedom, to clear your name, to avoid a conviction, and to win. The prosecutor, police, prosecution witnesses, sometimes the judge, and the alleged complainant are on the offensive to convict you. The defense attorneys are the defenders of your rights, the constitution, and work to raise reasonable doubt. Intense trial preparation is the key to “preparation of the courtroom battlefield.” Diligent preparation has tangible benefits:

• Your attorney will know the facts and law better than the prosecutor. Basically, your attorney must outwork the other side.

• A well prepared attorney is in command of the courtroom because he or she can anticipate and adapt to any issue that may arise during a trial. Preparation leads to confidence.

• Confidence is something the jurors and judge can see. The defense attorney’s are persuasive when in command of the facts and case law. The attorney works to build the juror’s confidence in you, the case, and a not guilty verdict.

• A well-prepared attorney can bring an enormous amount of credibility to the defense theory of the case.

Preparation can make or break the defense. Your attorney must know the police report in detail. He or she must read the applicable law and see how it fits into your case. In almost all criminal cases, especially a trial, there is almost always a challenge to the prosecutor’s version of events or a legal argument to be made. In my 16 years as a criminal defense attorney, I have never seen a police report that was 100% accurate.

The reports almost always contain errors of some sort. Some can impact the case while some may not. But, the errors are there. While police officers are trained in how to write a report, they omit facts or just get them completely wrong. People interpret events differently. One person may perceive the car being one color while another would see another. The officer’s interpretation of events may not be the way the jury would see the events.

For example, during the preliminary exemption of a double murder case I handled, a police officer described his encounter with a key witness or participant to the case. In the police report, the officer said the person had a large folding knife on him when the officer searched him. In the police report, the officer stated that the knife was approximately 9 inches. In Michigan, this knife was not a size that people could legally carry concealed. When I asked the officer why he just let the person walk away from the scene of the crime after finding a weapon on him, the officer testified it was a “small folding knife.” During cross-examination, I asked the officer if he wrote that the knife was 9 inches in length. He stated that he did. His definition of a “small folding” or pocket knife was well outside the norm. So, either the police report was incorrect or the officer was not exactly telling the truth as to why he let a crucial armed witness just walk away from the scene of the crime. Just a little more information for you. The person who the officer just let walk away from a murder scene had $20,000 in the trunk of his car that he abandoned at the scene. The individual also had 2 pounds of marijuana in the car.

If there are legal arguments to be made these can move a court to dismiss your case. One thing I really don’t like is when people say, “he got off on a technicality.” There is no such thing. There is the law. If you break the law you get arrested. If an officer violates the law, the “punishment” is suppression of the evidence or even dismissal of the case. We all have to follow the same laws.

In general though, a well-prepared case places a great deal of pressure on the prosecutor. If the “pressure” has real merit, meaning it has a strong foundation in fact and law, it can help to improve plea negotiations. If you read parts 1 and 2 of this series you can see how all of these points tie together. A well-prepared and researched legal defense can create leverage.

While no attorney can ethically guarantee the outcome of a trial, your criminal attorney can guarantee you that he or she will prepare better than the prosecutor. Most lawyers who are set for trial have read the police reports, identified witnesses, found exhibits, and scripted outlines of direct and cross examinations. However, a really skilled and aggressive defense attorney does more. He or she has thought about and anticipated how to respond to trial developments. For example:

• A well-prepared defense attorney can anticipate what a prosecutor may say to object to the defense use of certain testimony. The defense attorney will have case law ready to go to support his position.

• A defense attorney will think about the prosecutor rebuttal arguments to objections that the prosecutor may not have though of yet, or may not even realize.

• A well-prepared defense attorney will work on a way to try to eliminate a key piece of evidence in the case

• A well-prepared defense attorney will anticipate the judge’s responses to issues that will arise and how to answer the judge’s questions. If your lawyer is well-prepared, the judge will tend to see your attorney’s views on the case as being the correct view

A well prepared defense attorney has confidence and can take control of the courtroom. He or she is so prepared that the trial plays out like a well-scripted movie. Through preparation, the attorney knows the actors and through the actors he or she can let the jury hear the defense version of the case. Scene by scene, the defense attorney can direct the story. The jury is looking for something to believe in but they will not be misled.

If your attorney demonstrates commanding knowledge of the facts, the attorney can direct the witnesses in ways that helps the jury see reasonable doubt as if they just watched a movie and could predict the ending. Jurors are smart. They do not take kindly to being misled. If they catch on to an attorney’s deceptions, the case will be lost. However, if the attorney can let the jury see the facts of the case from a different viewpoint, then the jury will keep an open mind during deliberations. That is the role of the defense attorney. But, he or she can only be great in the role through preparation.

As i said at the beginning of this article, a great defense attorney will prepare the battlefield to overcome his opponent.