A few months ago I was presenting at a seminar and was asked “how
can a criminal defendant ever win a jury trial?” The inquisitive
young lawyer talked about the great amount of assets at the government’s
disposal to include investigators, experts, science and prejudices that
work to the favor of the government.
While it is true that the advances of science have made it easier for prosecutors
to prove cases, criminal defendants still win jury trials. For some, this
happens because the criminal defense attorney is more skilled than the
prosecutor. In other instances the evidence is weak and the charges never
should have been filed in the first place.
It is important to note that prosecutors are charged with the duty to conduct
criminal trials in a manner that the accused may have a fair and impartial
trial. Prosecutors are not supposed to inflame prejudices or incite passions
of the jury against the defendant. Prosecutors are not supposed to mislead
or unduly influence the jury. When prosecutors break these rules, it is
called prosecutorial misconduct. In criminal jury trials where prosecutorial
misconduct occurs, the criminal defendant may be granted a new trial on
appeal. Sometimes honorable prosecutors lose trials because they follow
the rules and prefer justice to a conviction.
Prosecutors have an obligation to obtain justice for the State. Prosecutors
do not represent victims, but rather the State or the United States depending
on if they are State or Federal prosecutors. Unlike prosecutors, criminal
defense attorneys’ duties are to represent their clients and to
use all honorable means to defend their clients zealously. In other words,
criminal defense attorneys and prosecutors have different standards. A
criminal defense attorney is not necessarily interested in justice, but
only justice for his client. The defense attorney must protect the Constitution
of the United States which provides a defendant with a Sixth Amendment
right to effective assistance of counsel. While the criminal defendant
almost never has the resources of a government, the criminal defendant
certainly has more rights. While some of the most winnable jury trial
cases are sexual assault, domestic assault, first degree assault, second
degree assault and third degree assault, these cases can often have problems
if the defendant has a less than stellar history.
The government may not provide proof of someone’s character unless
a defendant raises his character issues. However, often the government
will try to get character evidence in to prejudice the defendant under
Nebraska Rule of Evidence 27-404, which essentially allows character evidence
to be admitted for a limited purpose such as intent, lack of mistake,
knowledge, and so forth. What makes criminal cases difficult is that even
when character evidence is not admissible under 404 because it may not
fit the rule of evidence, prosecutors may try to get the evidence in another
way. The most popular way prosecutors like to get evidence admitted that
is not admissible character evidence is to argue that that defendant’s
prior bad act showed a pattern of abusive behavior, the defendant destroyed
evidence of a crime, defendant’s arrest for one crime resulted in
evidence of another crime or the defendant was under the influence of
a controlled substance the time the act was committed. This makes it difficult
for a criminal defendant to win a trial because there is prejudicial evidence
that the jury sees that attacks the character of the defendant beyond
the facts charged.
For example, if a defendant is charged with assault November 1, even though
the jury is only determining the guilt of what occurred on November 1,
the prosecutor may try to get in evidence of another assault that occurred
two days prior to influence the jury and claim that the evidence is somehow
relevant or intertwined with the pending assault case.
A good criminal defense attorney will object to this evidence and do everything
possible to keep it out. However it is important to anticipate this evidence.
This type of evidence is another tool that gives prosecutors advantages
in criminal cases.
A criminal defendant has several constitutional rights that protect him.
If evidence is unlawfully obtained, it must be suppressed and not allowed
at trial. In some cases, keeping the evidence out will guarantee a win
at trial because the government will not be able to prove an essential
element of the case if the evidence is not allowed.
In other cases, it comes down to a question of credibility. Is the alleged
victim more credible than the defendant? While the defendant never has
to testify, defendants often give statements to law enforcement and those
statements often are scrutinized by the jurors as to whether the defendant
is honest or whether the defendant’s statement makes sense in comparison
to the alleged victim. There’s an old saying that “the best
In short, criminal trials are winnable. Criminal defendants face a lot
of obstacles and the government has more manpower and fire power in terms
of investigators, witnesses, and money than a criminal defendant. However
a skilled defense attorney knows how to best attack each individual case.
Additionally a criminal defendant has constitutional rights that the government
does not have and cannot assert. To some degree this evens the playing field.
A case may depend on the facts, but all other things being equal, the most
committed usually wins. Like most things in life nothing is guaranteed
and even the most experienced hardworking criminal defense attorney cannot
guarantee a win. Fortunately neither can a prosecutor.