It is up to the State to prove that you are guilty beyond a reasonable doubt—it is not up to you to prove that you are innocent. While each case will have different evidence and different elements the State has to prove, there some general tactics your attorney can use to discredit or exclude evidence from trial, thus weakening the State’s case:
- Suppress the evidence. If you bring a successful motion to suppress,the judge will rule that evidence (regardless of how reliable the evidence is)cannot be used at trial, which could include either physical evidence or incriminating statements by you. In order to be successful, you must convince the judge that the evidence against you was obtained in violation of your rights and that, absent the violation, the evidence would not otherwise have been discovered. Often, this is done by arguing that a search or interrogation was done unlawfully.
- Call into question the reliability of physical evidence. Physical evidence could include things like fingerprints, DNA, audio/video recordings,and documents. If this type of evidence will be used against you, it is important to call into question whether this evidence really does demonstrate your guilt. For example, there a vehicle was broken into and, according to the State’s expert, one of your hairs was found inside the car. The prosecutor would likely argue that this is very strong evidence that you are the one that broke into the vehicle—but perhaps not. One way to combat this could be to hire your own expert to analyze the DNA and who might say that the State’s expert did not follow proper procedure or that there is insufficient proof that it is,in fact, your hair. Another way to combat this could be to acknowledge that it is your hair, but offer an innocent explanation as to why it would be in the car—for example, it is your friend’s car and she gave you a ride the day before.
- Demonstrate that a witness is unreliable. A lot of the time, the statements of witnesses, which can include the police, will be a key part of the prosecutor’s case. As such, discrediting the witness(es) testimony against you is often a major part of your defense. This can be done by providing evidence that is contrary to a particular witnesses' testimony or showing that the witness is generally unreliable, which could include their criminal history.
- Show that the police investigation was poor. The quality of the police’s investigation of a crime is always relevant. For example, if investigators failed to interview certain witnesses or failed to gather important evidence, it could be helpful in swaying a judge, jury, or even a prosecutor that there is reasonable doubt as to your guilt.
- Lack of intent. For many crimes, the State not only has to prove that you committed a certain act, but that it was committed with either intent,knowledge, or sometimes recklessness. For example, to be guilty of theft the State has to prove that you “unlawfully appropriate[d] property with intent to deprive the owner of property.” Tex. Pen. Code 31.03(a). So, if it is proven that you unlawfully appropriated property but State fails to demonstrate your intent to deprive the owner of the property (perhaps your intent was to return the property to the owner), the you would not be guilty of theft. Similarly, to be guilty of theft by possession of stolen property under Tex. Pen. Code31.03(b)(2), the State has to prove that you “appropriate[d] the property knowing it was stolen by another.” So, if the State is unable to prove that you knew the property was stolen, they would not have sufficient evidence to convict you. A word of caution:knowledge in this context does not necessarily mean actual knowledge, but also include a situation where you should have known that it was stolen; being willfully ignorant does not help.
This list is not comprehensive and only covers some of the most common ways to call into question your guilt. It does not cover many other defensive strategies.
Negotiating a Better Plea Deal
As mentioned above,there are quite a few things an attorney can do to weaken the prosecution’s case. However, if the prosecution has such a strong case that acquittal seems unlikely, it is important that you have an attorney who understands how to cut a deal. Prosecutors are typically motivated to avoid a trial—trials are expensive and very time-consuming. Probation is not always possible, certainly not in felony cases, but an attorney who understands how the prosecution works and who knows how to negotiate can get you the best deal possible.
If you would like to know more, call the Law Office of Erwin Kosal Kristel at (281) 815 – 4855.
