What does your lawyer do for you?

Reviewing your case….
Here’s a general guide to the things any good criminal law will look for when they analyze your case.  It is often difficult for lawyers to describe what they do, particularly in a criminal case, to earn their fee.  This is an attempt to describe, in general terms, the process of reviewing your case from a criminal defense attorney’s perspective.

When a criminal defense attorney in New York State begins an analysis of a client’s case, his resources may be limited to the client as the sole source of information, at least initially.  But that makes discussing the facts of your case even more important.  While you are not required to provide your account to your attorney, if you do, the information you provide will serve as the foundation for your lawyer’s analysis, and his subsequent advice.

Regardless of your guilt or innocence, a criminal defense attorney may engage in plea negotiations with the Prosecution for a number of reasons.  Quite often these negotiations will provide your attorney with access to information from the Prosecutor that he might otherwise have to wait for.  Also, many prosecutors will revoke any plea offer if it is not accepted by a certain stage in the case, it is important for your lawyer to obtain as much information as possible long before you are asked to make the decision to accept or reject a plea.

Your lawyer will take all of the available information and apply the applicable law to determine whether the Prosecution will be able to prove the charges they have filed beyond a reasonable doubt at trial.  To do that, your lawyer will review the (1) methods used by law enforcement to obtain the evidence against you, (2) the legal significance of that evidence and (2) the quality or credibility of any relevant or significant evidence.

If your lawyer concludes that the Prosecutor would likely be able to prove the case against you, he may advise you to consider pleading guilty to any plea bargain offered by the Prosecution if he believes it is more likely that you will be better served by a plea as compared to the result of a trial.  In other words, if you would be better off pleading guilty to the offer than you would by taking it to trial, then your attorney may advise you to accept a plea.

If on the other hand, your attorney is confident that the People will not be able to prove your guilty beyond a reasonable doubt, or believes that taking the case to trial would not lead to a more harsh or severe result, then your attorney may tell you not to accept a plea bargain.


The Methods used by police to gather evidence are important because the Constitution of the United States and New York State protects certain rights of human beings.  These rights are meant to protect us against the Government and are the foundation of our system of government.  Among the rights provided to each person are:

Due Process
Equal Protection
Protection from unlawful search and seizure
Protection from unlawful self incrimination

If your lawyer concludes that any of your rights were violated by the methods employed by law enforcement, he will likely ask the Court to suppress the evidence which they obtained as a result of their methods.  Once evidence is suppressed, it means the Government will be prohibited from using it at a trial against you.  Sometimes, the loss of this evidence will prevent the Government from proving its case.  Other times, their case may be weakened, but strong enough to allow the Government to proceed to trial.

Your lawyer will ask for suppression of evidence as a part of the motions he files with the Court.  These motions are made in the form of legal documents that are filed with the Court and served upon the Prosecutor.  The Prosecutor will then respond to your lawyer’s motion and the Court will either make a decision based upon these documents, or more commonly will ask the lawyers to come in and make their arguments orally, in open Court.  Not all issues can be resolved by motions alone, and where the Court concludes that there are issues of fact, it may order a hearing.  An issue of fact is a fancy way of saying that the facts that are relevant to the legal issues are not clear.  A hearing is ordered to establish the facts under oath.  That usually means witnesses will be called to testify under oath.  In this context, those witnesses are usually the Police Officers that gathered the evidence against you.

While the primary goal of hearings is to establish facts which will support any claim that your rights were violated, these proceedings have other values as well.  These hearings provide your attorney with an excellent opportunity to explore the case against you, and in cases where there is no downside or negative repercussions to the client by proceeding to a hearing, your lawyer will likely use a hearing to find out as much about your case as possible.

An experienced attorney will proceed cautiously to these hearings, in part because it is not common to win the suppression of evidence in most courts.   Most prosecutors will revoke any plea offer once a hearing is ordered, so your attorney may weigh your chances of success against the costs of going forward and advise you to forgo some hearings.  However, the law in this area is complicated and it changes frequently.  It is not an exaggeration to say that Law Enforcement personnel often violate the rights of people accused of a crime, but it will only impact your case if evidence was obtained as a result of any such violation and you can prove it.

Like it or not, many Courts give greater deference to the testimony of the Police. In smaller communities, it is quite likely that the Judge knows the Police Officer that arrested you, and will use that knowledge as a gauge for the Officer’s credibility.  For that reason, if the Officer testifies inaccurately, it may be difficult to convince the Court of that fact.  Most quality Attorneys will have no fear of pursuing an argument that is credible, but experience will help your lawyer estimate the likelihood of any argument’s success.

There are also a number of laws in New York State that are meant to protect people that are accused of crimes.  Most of these laws are found in the Criminal Procedure Law for New York, which imposes certain technical requirements on the Prosecutor.  Each one of these laws is intended to provide a specific kind of relief to the defendant, and vary from the outright dismissal of the case to preclusion of certain types of evidence.

The Significance of Evidence

Not all of the information or evidence Law Enforcement gathers will be truly significant to your case.  A truly objective and professional investigator will often gather as much evidence as possible, simply because it may be impossible to know what will be significant or relevant and what will be useless.

Your attorney may map out and index the evidence against you and assign a value to each individual piece of information.  Each piece will generally be assigned a value that means it is favorable, unfavorable or neutral in its effect on your case.  Most lawyers will attempt to anticipate the arguments the Prosecutor will make based upon each piece of evidence during this analysis.  He will also consider arguments that can be made in your defense based upon each piece.

Keep in mind that evidence can take a number of forms.  Evidence can be tangible, like a murder weapon, but it can also be intangible, like the testimony of the officer that found the weapon, the forensic technician that conducted tests on the weapon, or the testimony of a witness that saw the weapon being used.

Once the evidence is broken down and indexed or mapped out by your lawyer, he will then view its relevance to the elements of each charge against you, as well as any defenses provided by the law.

When a person is charged with breaking the law, the Government is required to prove each element of the offense alleged beyond a reasonable doubt.  It may be helpful to think of elements as ingredients in a recipe. Say, for example, you wanted to make rye bread.  If you leave out the flour, or the rye seeds, then you can’t make rye bread.  If the Government fails to prove one of the elements of a charge, then you may not be found guilty.

Every criminal offense can be broken down into two general elements, defined by the latin terms “mens rea”  (guilty mind) and “actus reus” (guilty act).  Mens rea is commonly referred to as “criminal intent” while actus reus is referred to as “criminal act” or “act”.

Your lawyer will review the facts to see what evidence the Government will use to support each element of the charges against you.  If a particular piece of information or evidence does not tend to support any of the elements, then your lawyer may consider it neutral.  If a piece of evidence contradicts or diminishes any arguments that are likely to be made by the Prosecutor, your lawyer may assign that evidence a value of favorable.  If the evidence supports an element, that evidence will be considered unfavorable.

If this review indicates that there is evidence sufficient to prove the elements of each charge against you, your lawyer may then look to possible defenses provided by the law.

This review will begin with possible defense related to the “mens rea” or your mental state at the time you committed the offense.  Under New York Law, there are four types of criminal intent: intentional, knowing, reckless and criminally negligent.  The law provides for a number of defenses that apply to a person’s mental state, such as insanity, justification (self defense), duress mistake of fact and others.  Ignorance of the law is not one of these defenses, so  it doesn’t matter if you didn’t know your actions were illegal.

These defenses are nuanced and limited, and your lawyer may be required to review the decisions of courts that have reviewed the law in the past to figure out whether a specific defense will apply to your case.  Because the prior decisions of other courts will effect the judges decision in your case, it will be important for your lawyer to take time to review the law in this area.

There are a number of common defenses that will apply to the criminal act element as well, but these defense are more specific to the particular charge you face and there’s no way to really summarize each defense for each criminal act.  However, generally speaking, your lawyer will make certain that the Prosecution will be able to prove that it was you, and not someone else, that committed the crime, and that your actions resulted in violation of the law.

Quality and Credibility

Contrary to popular opinion, there is no such thing as evidence that is “rock solid”.  Every piece of tangible and intangible evidence can be scrutinized and called into question, but ultimately it doesn’t matter if a jury (or trier of fact) still believes the evidence sufficiently to prove an element of the offense beyond a reasonable doubt.

Your lawyer will likely assess each witness’ testimony to determine whether the significant and relevant evidence it provides is credible.  To do that, your lawyer may compare the accounts of each witness for the purpose of finding inconsistencies between them.  Sometimes witnesses testify more than once in a proceeding (for example they may have testified at a hearing), and your attorney will review each witnesses prior statements to find inconsistencies between each statement.  It is rare that a witness will testify in precisely the same manner each time. Your lawyer will argue that the witness’ statement changed because the witness was mistaken or lying.  The prosecutor will argue that the difference are natural, and that no one can be expected to say the same exact thing every time they are asked to provide their account.

Your lawyer will also review the background of each witness and search for any factors that may allow him to argue that the witness has some bias that has caused them to testify untruthfully.  For example, an ex-spouse may be motivated by anger or spite when he testifies and he may allow this bias to effect his testimony.  Bias is an important factor for your lawyer to review, because the human brain is undeniably effected by our bias which is generally informed by our prior experiences.

This review may also provide some basis to believe the witness is simply not able to testify accurately.  For example, a witness may not have 20/20 vision, and cannot possibly be able to see events as accurately as they claim on the witness stand.

The quality of evidence may also be effected by mistakes which appear in documents or the methods used to collect the evidence.  Your lawyer may argue that these mistakes are indicative of a sloppy or careless investigation in order to undermine the credibility of all of the evidence in the case.

Other times, this review will allow your attorney to make far more damming arguments.  For example, in the OJ Simpson trial defense attorneys were able to show that someone had dribbled the victims blood on the defendant’s sock when it was not being worn, after the murder occurred.  The defense argued that it was the Police that had done this, in part because the blood recovered from the sock contained a blood preservative used by the Police lab. They also argued that the fact that the blood was found on two sides of the sock meant that the sock was lying flat and unworn when the blood was deposited there.

Ultimately, the jury in that case found the defense argument, brought through the testimony of their own expert who reviewed the evidence collected by the police, sufficiently credible to cast doubt on the entire case.

This review of the evidence may take time, in part because the Prosecutor is not required to reveal all of the evidence they have.  The law in New York allows Prosectors to conceal evidence and does not really require substantial disclosure until the eve of trial.  For that reason, your lawyer may not be able to provide a substantial review of your case until your trial has begun.  Unfortunately, many prosecutors refuse to reveal their evidence until they are required to by a court. This approach is the subject of significant criticism from Courts and Lawyers, but until the law is changed, no one can really force a prosecutor to give up their evidence before the deadlines imposed by the law.

Most lawyers will use their experience in similar cases to try to anticipate the evidence the Prosecutor will have.  Your attorney’s experiences will allow him to anticipate that evidence and prepare accordingly. It will also allow him to provide advice prior to the disclosure of all of the evidence against you.  The more relevant experience your lawyer has, the more accurate his analysis.

Again this review will lead to one of two paths.  Your lawyer will either advise you to enter a plea without going to trial, or your lawyer will advise you that you should proceed to trial or wait for a better offer.  If you proceed to trial, it’s likely that your lawyer will repeat this process in order to prepare for trial.

If you are ultimately convicted, your lawyer will use the same process along with a presentation of your personal history to argue for a more lenient sentence.