No lawyer wants to run out on a limb and have the limb cut off. The way to prevent yourself from being placed in that embarrassing – and losing – position is to have the information that you need to properly assess your case. Time and again I have found that being better prepared than my opponent has resulted in a win. You have to determine whether you have a case that you can potentially win and then figure out the strategy to win!
Remember, just because there is a wealth of evidence against your client you should not fold your cards and walk away from the poker table. Many cases have resulted in not guilty verdicts where it appeared as though the state had all the evidence necessary to warrant a conviction.
Part of the assessment of a case is an assessment of your opponent, whoever your prosecutor may be.
Part of your assessment of your case is knowing the managerial style of the senior prosecutor in your jurisdiction. Are the prosecutors in your jurisdiction all top-flight, crackerjack lawyers?
Will it be hard to win the case where all the evidence appears to be against your client? Or, conversely, is your jurisdiction one where prosecutors are reticent to try cases because they’ve lost just enough that they’re concerned about losing another one? That’s all part of the assessment process.
Again, it’s no different than poker. Does your opponent draw to an inside straight? Does he bluff well? Does he fold his hand when he has two queens facing up?
When you begin gathering the evidence and sorting through the witnesses and their statements about what happened, then you have begun the true critical analysis of your case.
If your client insists that he just wants to plead quickly and get probation and your client has yet to be indicted, then the you can consider discussing with your client the concept of entering a plea pre-indictment. You can’t do this, though, until you’ve gathered all of the evidence available. You don’t ever want to allow a client to plead guilty if there is no evidence to convict him.
Don’t relieve the prosecutor of his burden of proof. Very often he has little or no evidence and he’s hoping you fold. This is especially true in sex crimes cases. Most molestation cases have little to no forensics.
Too many criminal defense lawyers fail to hold the state to its burden of proof. Too many lawyers rush to plead the client guilty before they know all of the facts of the case. Sometimes the case is so weak that the prosecutor is merely bluffing. He’s holding a pair of twos and he’s got chips on the table and he’s hoping you’re not aware of his crappy hand.
I have been told by many prosecutors that they were surprised when a defendant plead guilty to a weak case. That said, they’ll take a win handed to them.