Building A Defense In A Sex Crime Case Under Steps 9, 10, And 11
After the attorney and client have thoroughly examined the police and the prosecutor’s case, the next step is to sit down and have an expansive and detailed interview with the client for the second time. This is the time for determining what the defense strategy will be, in light of what was learned when review the prosecution’s discovery, police reports, and the preliminary exam.
There is a reason why I interview my clients and get their side of the story first, and then go back to after reviewing the discovery and police reports. I want to know the client’s version of the events to shape and control the way I look at the case. It is a mistake to let the prosecutor, the alleged victim (also called the complaining witness), and the prosecutor’s witnesses control the narrative. They will push their own theme and theory of the case, and their story is almost always linear and chronological. In a date rape case, for example, the prosecutor’s theme will almost always go something like this: They met in the bar, went to her apartment, and the defendant t had drinks with her; and then, she passed out, and he had sex with her. While our defense theme and theory are sometimes chronological, that is not always the best defense version, nor is it the only way to tell a story. I like to compare our options to Quentin Tarantino movies. You could have chronological events like in Once Upon a Time in Hollywood, or you could use flashbacks and jump around in the story like in Pulp Fiction or Reservoir Dogs. Our job is to learn our client’s story and then ask, What is the best way to tell that?
To prepare our defense theme and theory of the case, we use an intensive discovery review process, combined with extensive trial preparation. Remember, the client is your best eyewitness, your best source of information, your best private investigator, and your best paralegal. You take the information they give you, plus the prosecutor’s discovery and whatever other content they have, to shape your storytelling and your theme and theory. Many different elements will combine to develop a defense theme and theory of the case, but the content comes from the client and the prosecutor’s discovery.
The Client’s Story
Most often, the best defense theory of the case must be based on the client’s story. The truth screams loud – it is consistent, unimpeachable, and persuasive. That being said, you sometimes have to be flexible. For example, let us say you have a date rape sexual assault case, and the client claims nothing happened between them. The alleged victim got a rape kit done by a SANE nurse examiner, and there’s evidence of sex: the client’s pubic hairs and semen are found in the rape kit examination. Obviously, you must talk to your client and ask them why they are insisting nothing happened when the DNA and rape kit says something did happen. As you can see, discovery and the prosecutor’s evidence can sometimes cause you to change the best way to tell your client’s story.
Typically, however, your client’s story is the best narrative because it is the truth. They might say, “I didn’t touch her,” or “I don’t know what did happen, but it wasn’t me,” or “It was consensual.” You should always look to give the jury the truth. Juries decide these cases with their hearts and backfill with logic from their heads. They feel better when the defense seems to be the side that is showing everyone what really happened. If you have that working for you, you are eons ahead of the game. You are always in a better place.
That is the reason I always start with my client’s narrative when determining the best strategy. As long as nothing in the prosecutor’s story changes that, the client’s version is the narrative we are going to go with. Then, we will use the prosecutor’s story, the prosecutor’s discovery, and the prosecutor’s evidence to help us determine how we are going to tell that story. After we apply the law that applies to our matter (for example: the law of consent, the law of alibi, the law relating to forensic interviews in a child case, etc.), we deconstruct the prosecutor’s case and build our defense.
Reviewing The Discovery
There is no question that our step or process of deconstructing the prosecutor’s case is critical to my success, and driven or fueled by the way we review discovery and prepare the facts of the case. I really believe this is what sets us apart when it comes to investigating and preparing a defense for a person accused of a sex crime in Michigan.
Most lawyers review the discovery provided by the prosecutor, and hand the discovery to their clients and say, “Read it over.” As the lawyer reviews the discovery, they contemporaneously start preparing their case. I think that is a really bad way to go about it.
There is a better way – and the best part is that it is so easy and simple, that it benefits from the KISS principle of preparing and litigating cases (Keep It Simple Stupid). As soon as I receive the discovery, I do an initial review to get a sense of what the prosecutor’s story is. What are their witnesses saying? What physical evidence do they have? Was there a rape kit? Are there text messages? Are there emails? Is there social media? Is there medical evidence? Are there photographs? Are there other eyewitnesses to what may have happened?
I need to know all of that. Then, I sit down with the client and say, “Here’s the discovery, and here’s your homework assignment.” Their assignment takes a few weeks. You might be asking; How could you wait weeks for a client to complete this? My first reason is that this is a marathon, not a sprint. I do not care about getting there first. I care about winning. My second reason is that this process simply takes time – yes, lots of time. You will see why in a minute.
Discovery Review Process – Step 1, The Narrative
What I do with the client and the discovery review is as follows: you need to read it in a quiet place with your full attention, phone and radio turned off, almost like you are studying for an important exam (because you are). Totally immerse yourself in the material. NO NOTES (at least NOT YET)! Then, you need to set the material down for at least as long as it took you to read it. I recommend that ideally you should read it on day one, and not touch it again until day two. Then you can come back and read it again all the way through, again still without making any notes. You should repeat that a minimum of four or five times.
After that, I sit down with the client and ask him/her to write me a narrative. I tell them, “You’re going to write me an overview. The 100-page equivalent of a jigsaw puzzle of a forest, with the pieces put together. When I look at the puzzle all put together, I want to see the forest, the big picture. I want to see everything that should be seen. Everything that you (the client) see. You need to describe what that looks like, in detail, in your narrative.”
The goal is this: I want the clients to come back and tell me and say, “After reading all of this discovery, the one thing that really strikes me is [blank].” I have had clients say things like, “I think everyone in this case believes this 14-year-old girl, and this is why,” or “After reading this all together, it seems that the motivation behind the case was the fellow RA getting threatened with being fired if they didn’t report that the victim had been sexually assaulted.” This narrative, this overall picture, is extremely important to understanding the case, and developing the defense theme and theory of the case.
Discovery Review Process – Step 2, The Footnotes Or Annotations
Understanding what the client’s story is versus what the prosecutor’s story is plays a key part if we are going after the jury’s hearts and emotions. We need to know what resonates with people, and what does not. We get there through the discovery review process, followed by a focus group process
But before we get to the focus group, let us look back at that jigsaw puzzle that the client has put together for us by writing a long, detailed description of the prosecutor’s case. Now that we can see the forest, we are going to tear that jigsaw puzzle apart and take a look at the individual trees.
Annotate The Discovery
I ask the client to annotate the discovery, creating a long set of footnotes so that I (as the lawyer) can fully understand every single detail about the allegations, no matter how small. Again, this process is also simple. Now that you have read the discovery as a whole, you need to read it line by line. As you do this, you need to take a red pen – I specifically want them to use a red pen so that it stands out when I am looking at the black and white documents in the courtroom. Just as with the narrative, these annotations should be done in a quiet place. The client should go through the discovery line by line, at least four or five times to make sure they do not miss anything. Every time they read something in the discovery that moves them, strikes them, or causes them to react, they should make a note of that, and create an annotation.
The client should be looking for anything that moves the needle, whether that is helpful, hurtful, or even neutral. It could be anything —instances of impeachment, inconsistencies, anything said by one of the prosecutor’s witnesses that supports the client’s version of the events. I even want the client to look for anything the victim says that the client agrees with. Oftentimes, the client is jumping out of their seat to annotate the material that is helpful for us, but ignores the stuff that hurts our case. That does not work – we need to identify it all: the good, the bad, and the ugly. A client doing a good job with this process will give me dozens and dozens and dozens of footnotes.
What Hurts Our Case
As I explained, I need to know what the client thinks will hurt our case. They were there, after all. I was not at that party. I was not with the client that night. The client is my only eyewitness in 99% of the sexual assault cases I defend. The client is my best private investigator. Even more so than the positive material, the insight the client gives into the negatives, into the weaknesses of our case, is invaluable. They might say something like, “I think it’s really a problem that the victim said that XYZ happened at the bar. Here’s why.”
This method, or process, to reviewing the discovery is never simple, or easy. But it is incredibly effective. In fact, there has never been an instance where that process has not helped me by providing invaluable insight into defending the case.
Discovery Review Process – Step 3, PUTTING EVERYTHING TOGETHER
How Much Overlap Exists Between The Client’s Impression Of The Prosecutor’s Discovery And The Evidence? Why Might The Narratives Differ?
This process is why it is so important to get the client’s story in the intensive interviews before they see the discovery. I do not want their story to be biased, prejudiced, or impacted by the discovery. This discovery review process is so intense, so impactful, that I do not want their version of the events corrupted, if you will, by having already read the prosecutor’s discovery, the witness statements, the physical evidence, et cetera. I want to know what they think happened before they review that. After, and only after, they have provided this information to me from their perspective are they ready to review the discovery, and give me their impression of the prosecutor’s case.
The prosecutor’s case will tap into all the dark places that the client did not necessarily want to look at when I interviewed them and dragged their story out of them. Now that we have both sides of the story, the client can do a much better job of telling me how the two “big picture” narratives really fit together. When we compare the client’s big picture to the prosecutor’s story, they are sometimes wildly different. Frequently, though, it is like a Venn diagram that overlaps in the middle. Either way, it is important to see the client’s story before and after we get the discovery and the prosecutor’s evidence.
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