NLS Tactics and Strategy">NLS Tactics and Strategy
Blonde Justice and Western Justice (what is this “Justice” thing of which you speak?) have addressed the question of why a criminal-defense lawyer would not share exculpatory information before trial with the Government. WJ asked, “why would someone wait until trial to show the prosecutor exculpatory information like that?”
The Blonde’s answer (written before WJ’s question, but linked to in a comment) is that it’s a question of trust: if the Defense trusts the prosecutor not to try, in the time before trial, to wire around the exculpatory evidence, then the Defense might share the gem with the Government. If the prosecutor is one who does things like threaten witnesses with prosecution for not toeing the official line (mumble mumble FCLD mumble mumble), then the exculpatory evidence gets held back. And then, The Blonde writes:
… it comes out at the trial, in front of the jury — with absolutely no warning to the prosecutor. I’ve seen that happen a few times, and each time it was a very humbling experience for a very arrogant prosecutor.
But it is sort of fun to watch. They don’t see it coming and then BAM! it’s like a train wreck! And who doesn’t love a good BAM! moment in a trial?
The Blonde is talking about a tactical reason not to reveal an Nasty Little Surprise (NLS) to the Government before trial, even if that NLS is a bombshell that seems to demand a dismissal: because the untrustworthy prosecutor might woodshed her witnesses to defuse the bombshell.
Tactically, the criminal-defense lawyer has to decide whether, and when, to reveal his NLSes to maximum effect. Some NLSes might be bombshells that will change the outcome of a trial (like the “complainant” swearing that the crime didn’t happen), and some might be less earthshaking revelations that might affect the outcome of a trial. The former might, if revealed before trial, convince the trustworthy prosecutor to dismiss outright even what he believed to be a whale. The latter might shift the tone of negotiations and convince him to offer a more favorable plea agreement, or dismiss the case that he had doubts about before.
The Defense should (as The Blonde illustrates) not reveal either kind of NLS to an untrustworthy prosecutor.
A criminal-defense lawyer might choose not to reveal the second kind of NLS even to a trustworthy prosecutor if the parties are so far apart in their negotiating positions that a small shift won’t bring them to agreement.
All of that is tactics; strategy is another matter entirely.
There is a strategic reason (setting aside the fact that the Defense can’t be certain of the effect the bombshell NLS will have) for the Defense sometimes not to reveal the bombshell to the Government before trial: once bitten, twice shy. A defender who holds back a bombshell for trial one time contributes uncertainty to the Government’s case in every case from then on.
The less certain the Government is of its case, the better the Defense’s negotiating position. If the criminal-defense lawyer has a reputation for springing unpleasant surprises for the Government in the middle of trial, he’s going to get better plea offers than if he lays all his cards on the table before trial in every case.
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I agree that most of the time, it is best not to give the prosecutor the opportunity to try to unduly influence a critical defense piece of evidence.
Confirmation bias plays a role. By the time a trial is in the works, the prosecutor has convinced himself or herself that the defendant is guilty (even though that’s not his or her job). So when a defense lawyer gives the prosecutor exculpatory evidence for which rational, dispassioned evaluation demands dismissal, it is by no means assured that will be the response of the prosecutor, who, because they have utterly failed to understand their role in the American criminal justice system, may only redouble his efforts to ensure the conviction of the person he has already judged to be the guilty perpetrator.
This of course all depends on the persuasiveness of the exculpatory evidence. An alibi witness is easy for a confirmation-biased prosecutor to dismiss. Something like DNA results excluding the defendant as a contributor to a biological sample from a rape kit would typically be so strong that even the most confirmation-biased prosecutor could not fall prey to his prejudgment. Then again, some people (even, nay especially, lawyers) are so dense that even this kind of evidence cannot override their confirmation bias. Hence you have Rosenthal refusing to admit Josiah Sutton’s innocence despite DNA evidence conclusively showing it.
Do not underestimate the power of confirmation bias.
I am with you Mark,
I have learned my lesson never to share any information or tactic with the State!!! When I first started I would go and talk to the State about my motions and only to have them use what I told them against my client.
Since then, I used to set the ambush and let them walk into it and open up with everything I had. Now I have learned to be more precise and civil about it.
/filed away for future use
Thanks
[…] tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the […]
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