“Getting the Evidence!

”
DISCOVERY Subpoena & FOIA Part 4 and 5 6 Hours
Secret #6 will be passed out at 12: noon
June 30 - July 28, 2007 Seattle WA
PRETRIAL PLANNING

• What happened?
• How did it happen?
• When did it happen?
• Why did it happen?
• Where did it happen?
• Who did what?
• What do I need to prove?
• How do I use the evidence to prove what I need to prove?
• How do I get the evidence I want in front of the jury?
• How do I persuade the jury that the evidence proves what I want it to?
• What evidence will my opponent present to the jury?
• What will my opponent argue based on the evidence?
• How do I counter my opponent's arguments?
• How do I convince the jury to rule in my favor?

Gathering Information About the Case

It is a capital mistake to theorize before one has data.

Sir Arthur Conan Doyle

You can't make whipped cream from skim milk. It's impossible to make an effective case or mount an effective
defense from poor facts.

Secret #6 unspoken at 12:00 noon, June 30, 2007

Remember, Whistle Blowers whisper! Or sink ships?

Discovery POWER CENTER © 2007 $19.95 no tax donation

1. PRETRIAL PLANNING for the "well-tried case

2. Organizing the case file,
3. Gathering information about the case,
4. what will be investigated,
5. what information will be gathered,
6. what is the theory of your case,
7. what story adds "flesh and bones" to your, theory of the case no emotions or beliefs,
8. Investigative resources,
9. Prosecutors,
10. public defenders in metropolitan areas,
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11. private defenders and public defenders,
12. Information you need and why,
13. types of information,
14. why you need credible information,
15. Two ways of obtaining information,
16. discovery, informal, formal,
17. Reading police reports and other documents
18. investigation,
19. Conducting your own investigation,
20. Client contact,
21. gathering information about the complainant,
22. interviewing witnesses,
23. locating and engaging an expert,
24. visiting the relevant scene(s),
25. assembling a pretrial investigation kit,
26. using the internet to locate and information,
27. Knowing the opposition, judge, courtroom & local rules,
28. Investigative resources available on-line,
29. tips from experienced private investigators,
30. military records,
31. what makes things tick,
32. Freedom of information (foia),
33. useful sites,
34. climatology,
35. weather,
36. maps,
37. aerial photos,
38. geography,
39. counties,
40. time or day,
41. measurements,
42. conversion,
43. broadcast news footage,
44. translators (interpreters),
45. public records,
46. offender databases,
47. sex offender registration,
48. criminal records,
49. finding people,
50. birthdays,
51. reverse phone look-up,
52. addresses & zip codes,
53. internet addresses,
54. medical experts,
55. medical information,
56. census,
57. licensed occupations,
58. world facts,
59. encyclopedia,
60. check out the prosecutor's practice guide,
61. tracking news,
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62. Analysis of information - generating a supportable story,
63. Brainstorming and thinking collaboratively outside the box,
64. Developing your case theory,
65. Finding a unifying theme,
66. Integrating storytelling techniques into your trial preparation,
67. Growing an attitude of pretrial readiness,
68. Legal research,h
69. fee based resources,
70. free resources,
71. Jury instructions,
72. Openings and arguments,
73. Litgation strategies and tactics,
74. creating a trial journal,
75. scouting out the judge,
76. scouting out the opponent,
77. scouting out the opposition expert,
78. coordinate with co-defendant's counsel in multi-defendant case,
79. strategize,
80. trial tips,
81. Checklists,
82. Trial notebooks,
83. Preparing exhibits, visuals, and a trial kit,
84. planning the visual aspect of your case,
85. learning how to use technology for the courtroom,
86. preparing a trial kit for courtroom support,
87. Additional resources:
88. Csi,
89. us attorney's manua,l
90. fbi manual on investigation,
91. guide to explosions and bomb scenes,
92. atf handbooks,
93. dea agents' manual,
94. us customs handbook,
95. investigation sites,
96. do-it-yourself mock trial,

Introduction

To be successful in meeting the challenges of the courtroom, the would be criminal trial advocate must spend
time in pretrial planning and preparation. It would be nice if we could learn how to defend a criminal case by
reading a two-page article (1), but such is not the case. Success as a criminal law practitioner requires an
enormous commitment of time and effort. It's nice to be blessed with cleverness, but it's better to be prepared
than clever. In the courtroom, information is so integral to effectiveness that without it a clever lawyer can't get
started. With abundant relevant information and advanced planning, a less clever lawyer can make more
headway.

When a criminal charge is filed by complaint, information, or indictment, only three things can happen: (1) the
charge will be dismissed; (2) the case will be tried to a verdict; or (3) the defense will waive the right to trial
and the accused will plead guilty or nolo contendere (no contest) either with or without a plea bargain
involving sentencing concessions. Reality teaches us that most cases are disposed of without resort to trial.
That's a euphemistic way of saying that most filed cases wind up in the third category - pleas of guilty. So, why
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spend time getting your case ready for trial if it is going to result in a guilty plea? The answer is that you don't
prepare every case for trial. Some cases by their nature will be pled. However, you can't be sure which cases fall
into that category until you have conducted formal and informal discovery, done a factual investigation,
researched the penal and procedural law (1 - state codes), (2 - federal crimes code), (3 - federal rules of
evidence), (4 & 5 links to criminal law sites), counseled with your client , and negotiated with the opposition.
You'll also need to brainstorm the case and engage in critical thinking about how to ethically steer it through the
criminal justice system. Plain fact: you will spend most of your life as a lawyer dealing with pretrial matters
than trying cases in the courtroom. [

The material in this brief discussion about management of a solo criminal law practice will focus on the
complexities of pretrial planning, investigation, discovery, analysis of the police offense report, and
development and implementation of case theories, themes, stories, and strategies. At trial, you are the
ringmaster. Yet, mastery of your case begins long before trial. It begins at what we call this interval known as
the pretrial stage of the criminal justice process. When you truly utilize the pretial stage to prepare, at the end of
all your investigation, planning, and preparing, you arrive back where you started but, for the first time, with
full appreciation of the case. [Note: I have added a slew of useful hyperlinks to the textual advice on this page,
but, for a myriad of other great sources in readying yourself to prepare and try criminal cases.

The more experienced advocate obviously has a leg up over the nascent, wet-behind-the-ears rookie in the
pretrial process. But competent pretrial practice is not so much about how much you know going in as it is how
much you know when the pretrial process is completed. A big part of pretrial practice is: (1) determining what
you need to know, (2) figuring out what you already know and what you don't know, (3) conducting
investigation, discovery, and legal research to obtain the necessary information that you didn't know, and (4)
preparing to present the useful information at trial in a manner that will provide the meat for convincing
arguments in favor of your position. You don't have to know much at the start of the pretrial process, but you do
have to learn how to gather, obtain, and learn things so you will know a lot by the end.

Pretrial Planning for the "Well-Tried Case"

What factors influence the outcome of a trial? You can look at it from a lot of perspectives. Perhaps the two
biggest questions you should ask yourself are: What conclusion do I want the jurors to draw from the evidence?
and What evidence do they need to do it? Here's an expanded list of some issues that you'll need to answer as
you begin to plan your case:
• What happened?
• How did it happen?
• When did it happen? (The Perpetual Calendar will help with the day of the week.)
• Why did it happen?
• Where did it happen?
• Who did what?
• What do I need to prove?
• How do I use the evidence to prove what I need to prove?
• How do I get the evidence I want in front of the jury?
• How do I persuade the jury that the evidence proves what I want it to?
• What evidence will my opponent present to the jury?
• What will my opponent argue based on the evidence?
• How do I counter my opponent's arguments?
• How do I convince the jury to rule in my favor?

They say, "A good plan today is better than a perfect plan tomorrow." But, given the constraints of time, you
must aim for the best plan possible. And for that, you must ferret out answers to all the above questions. Your
mindset should be - I will work on preparing my case to the very last, as if there were a chance to lose it.
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Organizing the Case File

The goal is to have a file that contains what you need but that is not cluttered with useless information. The
devil is in the details - the overall project of getting ready for trial depends on the success of the tiniest
components, but the details must be relevant details.

Gathering Information About the Case

It is a capital mistake to theorize before one has data.

Sir Arthur Conan Doyle

You can't make whipped cream from skim milk. It's impossible to make an effective case or mount an effective
defense from poor facts.
"Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all
avenues leading to facts relevant to the merits of the case and the penalty in the event of convictiion."
Standard 4-4.1(a) - Duty to Investigate
ABA Standards for Criminal Justice : Prosecution and Defense Function

+Information gathering as an integral part of pretrial preparation. Remember the old proverb that admonishes
us not to cross our bridges before we come to them. In criminal cases, this is a disastrous philosophy. Trial
lawyers spend considerable pretrial effort identifying the bridges they will need to cross in the courtroom and
planning exactly how to cross them. That is what this page is about.

+ Learning how to plan and conduct a factual investigation to uncover and discover potential evidence: Recent
graduates from law school find it a bit difficult to investigate their client's case. This is understandable because
most law schools don't teach this skill. Also, in law school you're typically provided with a given fact situation
in an appellate case and asked to apply your analytical skills in predicting and arguing a legal result. In the real
world of the courtroom, you learn that there is no a priori given set of facts. You have choices as to what
information will be presented to the jury. That choice is informed by the information you gather during the
investigation phase of your case. It is also influenced by your choices in selecting, discarding, and ordering
information for presentation in court. In order to plan, direct, and, where applicable, participate in factual
investigation of your case, every criminal defense lawyer needs to be familiar with the following processes,
skills, and concepts:

• Determining the need for factual investigation.

• Planning and prioritizing the factual investigation.
• Implementing the investigative strategy into gathering of factual information..
• Memorializing, sorting, and organizing factual information in accessible form.
• Deciding whether to continue or conclude the information gathering process.
• Reviewing and evaluating the information that has been gathered.
• Reconstructing relevant events.
• Litigating the case at the trial court level.

What will be investigated? First, there must be a person, place, or event that needs investigation. In other words,
we must know what it is that we need information about. In criminal cases, we typically need information about
people, places, and events that are reflective either of commission of crime or existence of defense to crime. To
prepare for trial, you must be able to visualize the way the case will unfold at trial, i.e., what you and the
opposing lawyer will do. Before the process of visualization of the trial can take place, information must be
gathered.

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What information will be gathered? There is a mountain of information surrounding every event. Theoretically,
with enough time, you could gather all conceivable information surrounding an event and sift through it for data
that might be legally relevant as potential evidence. In practice, the investigation of people, places, and events is
guided by: (1) your understanding of what needs to be investigated, (2) available resources, (3) laws and
procedural rules, e.g., the substantive law of crimes, criminal procedure, and the rules of evidence, that define
crimes and defenses and limit what information can be introduced in court, and (4) a good measure of common
sense. (1 - a brief discussion of developing a defense strategy)

What is your "theory of the case"? The information that is gathered about the people, places, and events will
yield a tentative theory of the case (Scientist call it a "working hypothesis."). In the early phases of pretrial
investigation, your theory of the case is tentative. You never develop your theory of the case in a vacuum. You
never try to shoehorn an impossible factual story into your theory of the case. Sherlock Holmes taught us that
"it is a capital mistake to theorize before one has data; insensibly, one begins to twist facts to suit theories,
instead of theories to suit facts." If credible new information surfaces that is inconsistent with your theory of the
case and it cannot be satisfactorily explained away, you must be willing to regroup, rethink, and form a new
theory. In other words, if your theory of the case doesn't hold water in light of the potential evidence, form a
new theory, and test it. As your tentative theory is weighed against the developing facts and passes, it ceases to
be tentative and becomes the operative theory. The operative theory of the case leads logically and emotionally
to a conclusion.of why the accused is either guilty or not guilty. It is this operative theory of the case that
constitutes the taproot of your pretrial investigation, planning, and preparation. At trial, your operative theory of
the case is the one paragraph explanation of why you should win.

What story adds flesh and bones to your "theory of the case"? People, places, and events tell a story. But trials
are not always about the same story. Some events tell one story. Other events tell another story. For example,
the prosecution's story may focus on D intentionally or knowingly engaging in certain prohibited conduct, e.g.,
taking money from a bank teller at gunpoint, or causing a particular proscribed result, e.g., shooting a person to
death. The defense's story may focus on events antecedent to or during the alleged crime that may excuse or
justify D's otherwise criminal behavior, e.g., an accused bank robber might show that he was forced to commit
the robbery or have his wife and children killed by the real robber who was holding a gun to their heads or an
accused murderer might show that based upon previous threats by the deceased coupled with an apparent deadly
attack, he responded reasonably by using deadly force for self-protection. It's your analysis of provable events
and how you will reconstruct them in court that provides your story of the case and your theory of prosecution
or defense. To come up with a viable theory of the case, you must know the law and the facts.

Investigative Resources

Prosecutors have an army of investigative agents. Although prosecutors are ultimately responsible for selecting,
preparing, presenting, and probing the trial evidence, they rely on government investigators, e.g., state and local
police, sheriffs, d.a. investigators, FBI agents, treasury agents, IRS agents, ATF agents, DEA agents, etc., to
eliminate possible suspects, focus on proper suspects, and gather information that can make its way into
evidence. Aside from grand jury investigations where the power of subpoena is an ally, most prosecutors don't
do much individual investigation. [Note: One reason for the prosecutor not playing a participatory role in on-
site investigation is that immunity from civil liability may be lost. The prosecutor has absolute immunity for
action that is deemed integral to the adjudicative process. See Imbler v. Pachtman, 424 U.S. 409 (1976).
However, when a prosecutor assumes a participatory role in the investigation of a case, s/he has at most a form
of qualified immunity from civil suit. See Burns v. Reed, 500 U.S. 478 (1991) and Buckley v. Fitzsimmons, 509
U.S. 259 (1993). See also Kalina v. Fletcher, 522 U.S. 118 (1977), Gomez v. Toledo, 446 U.S. 635 (1980),
Mitchell v. Forsyth, 472 U.S. 511 (1985), ] However, every prosecutor (and every defender, for that matter)
needs to know how the government's investigators conduct an investigation. (1 -police investigation of violent
crime), (2 - the law enforcement view of the pretrial process) For example, prosecutors must acquaint
themselves with how a crime scene is secured and access controlled. Once the scene is secured, they need to
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know what processes are used to search for, identify, photograph, label, and gather evidence. Prosecutors must
know how crime scene investigators (CSI) and/or criminalists (1 -criminalist ), (2 - reconstruction of crime
scenes) prevent contamination or loss of evidence. Prosecutors must know who is present at a crime scene,
e.g., first cops making the call, detectives, medical examiner investigators, emergency medical (EMT)
personnel, criminalists, top brass, onlookers, etc. To be effective in presenting evidence, prosecutors must learn
how a chain of custody of tangible items, particularly those of a fungible (interchangeable, e.g. cocaine) nature,
is maintained. To support admissibility and credibility of evidence, the presenter must know how the evidence
is transported from the crime scene to the station house or lab? With respect to scientific (forensic) evidence,
one must know how the sample is handled in the lab? These are just a few of the things that must be within the
working knowledge of every prosecutor. How do get this information? Every rookie prosecutor should take the
time to visit some crime scenes, not as an active investigator, but as an observer seeking to understand the
investigative process that is antecedent to every trial of significance.

Public defenders (1), (2 -check the on-line library of this top-notch federal public defender trial practice
resource, e.g., defending meth cases - 3) In metropolitan areas, public defenders are in a position somewhat
different to prosecutors. To be effective in testing the prosecution's case, public defenders have to know how the
law enforcement investigators gather evidence. Yet, unlike prosecutors, public defenders won't be welcomed by
the police to observe the investigation of fresh crime scenes. Law enforcement agents are an information
gathering arm of the prosecution. So, unless the public defender has prior experience as a prosecutor, the
process of learning how the other side investigates its case takes place during discovery by viewing the
contents of the prosecutor's file, e.g., offense reports, witness statements, photos, lab reports, and other
documentation gathered or prepared by the prosecution's investigators. Unlike their rural counterparts, big city
public defender offices do have trained investigators working on their staffs. These investigators work under the
direction of the public defender gathering information for the defense. So, to provide direction to the defense
investigators, the public defender must understand how to conduct an independent defense investigation of a
case.

Private defenders and small public defender offices must do their own investigation or hire a trained
investigator. When you can afford it, a competent private investigator can be a valuable addition to your pretrial
team. See Investigation below. When you do your own investigation, not only do you have to know how to
conduct an investigation, you must physically conduct it. Most law schools and CLE programs don't train you
for this task. You learn it by doing it. The defense information gathering process is normally preceded by an
analysis that considers how potential facts and other information might factor into an evidentiary presentation at
trial. This analysis involves the use of your knowledge of legal rules and principles to identify the range of
defensive case theories and available information. Of course, a great deal of information may not be admissible
as evidence. This integral calculus of "how will this information play out in court" continues throughout the
case as you make moment to moment decisions in planning a coherent and effective investigation. Your theory
of the case ultimately dictates what information you will pursue, i.e., what direction your investigation will take.
Because you can't be sure what information may surface during the investigation, you must always be alert to
the possibility that your initial theory of the case (or working hypothesis) may need to be revised or abandoned.

Information You Need & Why

Types of information: What types of credible information may be relevant to your case? Possibilities include:
(1) information surrounding the event(s) in issue; (2) information that explains why the event(s) occurred, e.g.,
evidence of motive, prior relationship between the parties, etc.; (3) information relevant to previous events that
may form the basis of a defense, e.g., prior threats of the complainant in a self-defense case, prior law
enforcement inducement in an entrapment defense case;etc., (4) evidence that impeaches or bolsters the
credibility of the witnesses, the victim, and/or the accused. You also want information about your adversary.
Who is your opponent? Remember the wartime advice: To fight an enemy, it's important to know his numbers,
but it is more important to know his philosophy.
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Why you need credible information: You need believable information for purposes of offense and defense. On
offense, information is the meat of your story of the case. On defense, forewarned is forearmed. That is, if you
know what information is coming from the other side at trial, you will be better prepared to employ your
lawyerly skills to confront and neutralize it than the advocate who does not know what is coming around the
corner.

Two Ways to Obtain Information - Discovery and Investigation

Methods of gathering information useful to your defense: As the old saying goes, "Forewarned is forearmed." If
you know what is coming from the other side, you will be better prepared to deal with it. Defenders and
prosecutors must be familiar with the basic methods of gathering and developing useful information and the
cost/benefits of each method. The two methods are discovery and investigation.

DISCOVERY

Discovering information gathered or generated by the other side: [See Motion Practice for titles of numerous
sample discovery motions. On this site, you'll find a useful article on discovery management and some basic
federal discovery case law (1 - 19 pages, 2 - 58 pages, 3 - PowerPoint Slides on discovery organization issues, 4
- Tab 4). The prosecution gathers information by dispatching paid government agents who are trained to
investigate possible crimes, gather potential evidence, and be prepared to testify to their efforts at trial. The
government also builds laboratory facilities and employs forensic analysts to examine and test tangible material
that has been gathered and testify as expert witnesses at trial. We can generally be sure that if the government
charges a defendant with a crime, the government will have information that it has gathered in support of the
allegation. So, one way the defense can gather information to prepare for trial is by obtaining formal (by the
book) and/or informal (discretionary) discovery of the information upon which the prosecution bases the
accusation.

Informal defense discovery requires cooperative communication with the opposition. Sometimes, sleeping with
the enemy is the best way of picking its mind. Prosecutors may be loathe to reveal anything more about their
case than is required by law. Yet, to take a hardball, do-it-by-the-book attitude in every case would be to
discourage guilty pleas, something that the prosecution cannot afford. As a matter of practicality, many
prosecutors will informally provide defenders with information about the prosecution's case with an eye to
encouraging a guilty plea. Prosecutors also like to avoid the extra work involved with responding to formal
discovery requests. It's generally proper practice to resolve a case by good faith mutual agreement of the parties.
So, don't turn up your nose to the prosecution's "open file" policy that shows you all of it's cards. Make a good
faith effort to resolve your discovery demands by agreement before presenting them to the court. On the other
hand, if a prosecutor knows that a case is going to trial, the game may be hardball from the outset. In such
event, your remedy is formal discovery.

Formal defense discovery in a criminal case occurs when the defense seeks and obtains a formal court order
instructing the prosecution to reveal investigative information to the defense. Informal discovery occurs when
the prosecution voluntarily reveals investigative information to the defense without formal court order. Every
jurisdiction will have its own statutes and rules governing the pretrial and trial discovery process in criminal
cases. In some jurisdictions, e.g., federal court, there are rules of counter-discovery that allow prosecutors to
have discovery of defense information as a condition to statutory discovery by the defense of information in
possession of the prosecution. Defenders and prosecutors must develop a working knowledge of formal pretrial
discovery motion practice in their jurisdictions. It is not uncommon in this digital age to receive your discovery
from the opposition on a RW-CD/DVD (read/write compact disc/DVD). In the near future, most of us will have
to have some understanding of e-filing, the process of electronically filing documents related to the case, most
commonly using Adobe Acrobat portable document format (PDF) and a scanner, and e-discovery (1), the
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process of gathering electronic data from your records and from the other side, and understanding the work of
forensic computer experts in finding information on computers,e.g., deleted files in financial fraud and
pornography cases. The federal courts are already geared up with an Electronic Case Files system allowing e-
filing and soon there will be a provision for e-discovery in the Fed. R. Civ. Proc. [Note: Look at you own state
web site to see if and how it is handling electronic filing in civil and/or criminal cases. Here are links to few
states: CT -civil, MO, NY , PA. In my homestate, as of early 2006, approximately twenty of Texas 254
counties permit e-filing; no Texas appellate courts have e-filing systems in place.]

Discovery from the defense perspective has a Constitutional dimension. The United States Supreme Court has
generated case law that provides some threshold rights for defense discovery of information in possession of the
prosecution and/or its agents when such information is favorable to the accused. Your research regarding the
USSC due process requirements should begin with the "Brady Rule" derived from Brady v.Maryland, 373 U.S.
87 (1963) (1 - Brady analyzed) holding that, irrespective of the good or bad faith of the prosecution, it violates
constitutional due process for the prosecution to suppress evidence favorable to the accused and material to guilt
or punishment when there has been a defense request for such information; your reading should also include
subsequent cases such as: Giglio v. United States, 405 U.S. 150 (1972) making clear that the Brady Rule applies
to information that relates to credibility of a witness as well as substantive evidence; United States v. Agurs,
427 U.S. 97 (1976) which indicates that the prosecution's duty to disclose under Brady does not require a
request by the defense: United States v. Bagley, 437 U.S. 667 (1985) indicating that evidence that could be used
to impeach a witness at trial falls within the scope of the Brady Rule; Kyles v. Whitley, 514 U.S. 419 (1995)
making clear that the Brady Rule is not limited to evidence known only to the prosecutor but applies to
evidence known to other agents on the prosecution team, e.g., the police; Strickler v. Greene, 527 U.S. 263
(1999); United States v. Ruiz, 536 U.S. 622 (2002). These last two cases raise an interesting question in light of
current reports (1), (2) that the FBI has a policy of vetting information that will go into the case file without
disclosing discarded information to prosecutors; supervisors decide if information makes it into case file. This
practice could have powerful discovery-suppression overtones. Is it possible that your local police agencies are
following the FBI practice? Here's some information (1) regarding the issue of prosecutorial suppression of
exculpatory evidence.

On the issue of what obligation the defender has to explore all avenues leading to facts relevant to the case,
ABA Criminal Justice Standard 4-4.1 says that defense counsel should make an effort to secure information in
the possession of the prosecution. See the language of Justice Souter in Rompilla v. Beard, 545 U.S. 374 (2005)
reversing a death penalty verdict for ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984) because the defender was bound to make reasonable efforts to obtain and review material that the
defender knew the prosecutor would probably rely on as evidence of aggravation at the punishment phase of the
capital trial. Souter quoted from 1 ABA Standards for Criminal Justice 4-4.1:

"It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all
avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The
investigation should always include efforts to secure information in the possession of the prosecution and law
enforcement authorities.The duty to investigate exists regardless of the accused's admissions or statements to
the lawyer of facts constituting guilt or the accused's stated desire to plead guilty."

Reading Police Reports and Other Documents: Effective discovery requires that the recipient of discovered
information be able to understand it. For example, defense lawyers must know how to read a police offense
report and recognize and analyze documents, e.g., medical records, that are relevant to the case. What do you
look for when reading police reports? Here are a few suggestions: Look for the report of the first officers on the
crime scene. What descriptions did the arriving officers give of the conditions of the scene - this includes the
position of moveable objects and alleged victims. What did the first officers on the scene do upon their arrival,
e.g., where did they go, what did they do to secure the scene? If there was a victim, did the first officers have
contact with the victim? Were EMT (emergency medical technician) personnel involved with the scene? If so,
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who called for the EMT's? How many EMT's arrived? What were the movements of the EMT personnel at the
scene? What observations did the EMT's make concerning the victim and the victim's surroundings? What was
the condition of the victim? If deceased, who pronounced the victim dead? If alive, what efforts were made to
deliver first aid to the victim? Did the EMT personnel move the body? When? Where? Was the victim
conscious? Was any effort made to communicate with the victim? Was the victim transported to a hospital
(morgue)? Did detectives arrive at the scene? Did they conduct a further investigation? What did they observe?
What did they look for? Did the detectives take measurements and or make diagrams of the scene? How many
diagrams or sketches? Of what? Did the detectives talk with witnesses? Who? When? Where? Were the witness
statements recorded, e.g., written, tape-recorded, paraphrased into the report? What did the witnesses say? Were
photographs taken? Who? When? Of what? How many? Did CSI (crime scene investigation) personnel report
to the scene? Who? When? Where? What did CSI do? Were samples, e.g., fingerprints, trace evidence,
collected? Who collected what and from where? How was the collected evidence transported to the crime lab or
other repository? What reports did CSI make? Is there a log reflecting each item collected? Did a criminalist or
other expert subsequently examine the items collected at the scene? Were there laboratory reports? What do
those reports say? What were the results of tests run by the lab? Does any portion of a sample collected for
testing remain for analysis by a defense expert?

Obtaining Medical Records: Is the alleged crime one of violence where medical records exist? If so, obtain
them from the opposition or the medical facility that generated them.. What treatment was afforded to the
patient? Was the patient transfused? (This can be important in cases involving subsequent DNA analysis.)
Speak with the attending physician(s). If this is an alleged criminal homicide, obtain the medical examiner's
official report (autopsy protocol). Also, obtain the report of the medical examiner's investigator who attended
the crime scene. (Medical examiners typically do not personally visit crime scenes. Instead, they send trained
ME investigators to observe the body at the scene and gather scene information.) Also, obtain (subpoena, if
necessary) copies of the autopsy surgeon's notes and tape recordings dictated by the surgeon while the autopsy
was taking place. Read the medical records, including supplementary reports, e.g., toxicological reports. What
was done? Was it done properly? What was not done? What conclusions were made?

INVESTIGATION

Conducting your own investigation: Rather than limiting yourself to trying the case solely on information
discovered from the prosecutors file, defenders should conduct their own independent factual investigation of
the case. If you can afford the services of a top-notch investigator, consider the advantages of doing so. See the
discussion of private investigators in the Developing Available Resources section below. If you can't afford
outside help, read up on what private investigators do and how they gather information (1). Every defender and
prosecutor should print and read the 84 page Scene Investigators Guidelines prepared by the New Mexico State
Medical Examiner's Office and the F.B.I.'s 71 page 2003 version of the Handbook of Forensic Sciences. Both of
these have splendid information about how a crime scene investigation should be conducted.

Client contact: Some of the information about what happened or didn't happen will come from the client. You
will need to interview your client on more than one occasion and communicate regularly.

Gathering Information About the Complainant: What can you learn about the complainant / complaining
witness / alleged victim? Quite a bit, if you have the time, the need and the financial resources to make the
investigative effort. Aside from basic personal facts such as sex, race, age, marital status, personal appearance,
education, socioeconomic level, residence, vehicle, prior criminal record, etc, you may be able to develop a
reasonably accurate profile of a complainant's childhood history, lifestyle, intelligence, and personality. In many
jurisdictions there is a Victim's Advocate Office associated with the local prosecutor; don't forget to use your
discovery rules to get a copy of this statement for use in cross-examination.

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 Subpoenaing 911 phone calls and police call slips: Become familiar with the procedure for subpoenaing
records of 911 phone calls. You may have a narrow window of opportunity to issue and serve a subpoena duces
tecum, e.g., in my county, Harris County, Texas, records of 911 calls are obliterated thirty days after the call is
received. Many law enforcement agencies also keep a record of outside calls made to the agency; these memos
of calls may be on paper "call slips." Determine the policy of your local law enforcement agencies and make it
part of your case investigation to subpoena call slips.

Interviewing witnesses as part of case investigation: In trial work, what you don't know can hurt you. Ignorance
is not bliss when it comes to information that witnesses may possess. It is folly for a defense lawyer not to
identify and locate witnesses and see to it that they are fully interviewed. Witnesses come in three flavors:
friendly, neutral, and hostile. (Adverse witnesses, either the opposing party or witnesses identifying themselves
with the opposing party, are almost always hostile.) Witnesses come in different brands: a fact witness knows
something relevant about what happened or didn't happen, a character witness knows something about a
relevant and admissible character trait of the accused, another witness, or the alleged victim, and an expert
witness has knowledge about relevant matters that will be helpful to the jury in understanding the evidence. It
is usually foolhardy for the defense to dash out to interview witnesses willy-nilly in the absence of some
knowledge of the prosecution's theory of the case, i.e.,. what the government claims happened and knowledge
of the possible defense available in the jurisdiction. If you are doing your own investigation you will have an
investigation plan before you contact witnesses. If you are using a private investigator, you must brief the
investigator on the sort of information you need. Otherwise, your investigator won't know what questions to ask
and which answers to pursue. You can't depend on lay witnesses (and sometimes even experts) to know what
information is relevant. So, prior to interviewing witnesses, you'll have to develop skill in rapidly discovering
the basics of the prosecution claims and forming an investigative plan. You want to obtain all the relevant
information possible, but you don't want the relevant information to be buried in a mountain of irrelevant
detritus. See this article for a useful discussion of the law surrounding the issues of clients and witnesses taking
the Fifth.
.
Locating and Engaging an Expert Witness: In some cases, as part of the pretrial preparation process, you will
need to locate and engage an expert. Please consult the CCJA Expert page for a discussion of expert testimony
and guidance on locating experts. The defense may find it useful to have its expert analyze evidence seized by
the prosecution agents. If the defense is successful in gaining access to evidence for testing, the prosecution
typically will ask that the defense pay for transport costs incurred in maintaining the chain of custody. In some
instances, where the quantity of a sample is limited and may be consumed in prosecution testing, the defense
will want to request a court order permitting the defense expert to observe and record the scientific testing
conducted by the prosecution's expert. The defense may also want to have its expert present to observe and
record when prosecution agents, e.g., criminalists, police, etc., conduct a search of seized or impounded
property. See Motion Practice.

[Tip: If your expert does conduct a scientific examination or analysis of evidence in the prosecution's
possession, be aware that the prosecution's chain of custody representative, e.g., the detective with case
responsibility for the evidence, will probably try to get your expert to talk. Also, if your expert observes and
records examinations or analysis done by a prosecution expert, the opposition's expert will try to get your expert
to talk. Whatever your expert says to these folks may come back to haunt you in court. So, be sure to warn your
expert not to say anything revealing, e.g., information or opinion that s/he wouldn't want aired in cross at the
trial. On the other side of the discovery and impeachment coin, you may want to advise your expert to get the
other side's witnesses talking in these encounters.]

Visiting the Relevant Scene(s) and Gathering Useful Information: To comprehend and understand a scene and
what may have happened there, you must visit it. When you visit a scene, take a supporting (prover) witness
who can gather potential evidence and testify as an authenticating witness, should the need arise. Become
personally familiar with the environment of the scene. Walk it. Gather tangible objects that could be potential
11
evidence. Do not contaminate the object. Use gloves, and document the retrieval and storage of the object.
Make detailed notes. Make a diagram. Include relevant measurements. Record the scene by photographing and,
if useful, videotaping it. To record scenes properly, read tips about photography , how to buy equipment and
take photos, and crime scene photography , e.g., angles, panning, lighting, etc., in your spare time before you
embark on a crime scene visit. If you use a digital camera, you can afford to take a lot of pictures. Professional
photographers get one good shot for every 36 they take. Before investing in a new camera, digital, digital SLR,
analog, or other, check out the reviews in PC magazine.

[Tip: If you are a defender, when you visit a crime scene and make photographs of potentially relevant aspects
of it, take a supporting (prover) witness. Take three photos of every relevant scene, one with yourself in the
scene, one with your supporting witness in the scene, and one of the scene by itself. When you or the
supporting witness appear in the scene photograph, do something relevant to the photo such as holding a pointer
or a ruler or a tape measure. At trial, you may want to introduce the photo that includes you. The reason would
be not only to subtly show that you have personal knowledge about the scene in question but also because the
photo is graphic proof that you care enough about your case to do you own investigation. If the authenticity of
the photo is questioned or you need the supporting witness to qualify it, you may choose to introduce the photo
that includes the supporting witness. If the prosecution successfully objects to a photo that includes you, you
will have the plain scene photo as backup evidence.]

Assembling a pretrial investigation kit: If circumstances dictate that you conduct your own investigation, you
will need to assemble some hardware. These material should be gathered together and kept in an accessible
place. Your pretrial investigation kit should include the following:
- carrying case
- 50 ' retractable coiled measuring tap
- portable high quality tape recorder, & extra tapes [Consider buying a digital recorder.]
- Polaroid camera and extra Polaroid film
- digital SLR camera (1), (2), (3), (4), (5 - great info re buying and using digital cameras and other
electronics, as well as software, components, systems, peripherals, etc.; 4 megapixels resolution should be the
minimum for your camera, 5 or 6 is better; buy a digital camera that accepts a secure digital memory card that
will store photos; phone cameras don't provide sufficient quality.)
- hand-held digital camcorder (records video and takes photos)
- extra batteries for battery operated gear
- disposable rubber gloves to prevent contamination of tangible objects
- expandable pointer
- roll of masking tape
- glue stick
- bottle of glue
- large binder clips
- extra pens, pencils,
- magic markers (black, red, blue, yellow, hot pink, etc.)
- letter and legal sized tablets
- post-it note tablets
- scissors
- flashlights - big and little
- business cards
- PDA - e.g., Blackberry
- stopwatch

Using the Internet to locate and gather information: You can gather relevant information from sources on the
Internet. There's a world of useful information out there in cyberspace. Here's an example; there's a terrific 84
page guide to homicide investigation compiled by the New Mexico State Medical Examiner's Office that every
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prosecutor and defender should read before trying a criminal homicide case, and it's also good for rookies who
are trying misdemeanor assaults. The federal government has it's own investigator's guide to sources of federal
information. These resources are yours without charge for the taking. When faced with developing criminal
records of witnesses, etc, you should read the material contained in Information Sources in the Criminal Justice
System. There are several excellent web sites without substantive content but with an exhaustive number of to
investigative criminal law resources that do contain substantive discussion and explanations. Two of the best are
CrimeLynx and Flax's Links. If you are in a rush, check the CCJA Links Page for some terrific investigative
resources that are not repeated in this discussion of investigation of criminal cases. One overlooked resource is
WayBack Machine, a site that allows you to browse an archive of 30 billion web pages.

Knowing the opposition, the judge, the courtroom layout, and the local rules: Check out the opposition, e,g,
defense lawyers may be listed in Martindale or Findlaw, and may have their own web sites, federal prosecution
offices and state prosecutor's offices have web sites. You can find out about particular judges by consulting a
local bench book. For example, look up your federal judge in the Federal Judges Biographical Database; for a
fee, you can buy the Almanac of Federal Judiciary; the local bar association (1) in my own county, Harris
County, Texas, sells a bench book covering all of the local counties and providing information straight from all
the judges on motion and order procedures, pretrial and trial procedures, use of demonstrative evidence, trial
settings, court appointments, continuances, contact information, pet peeves, etc. Check with your local bar
association to see if there is a local bench book for your venue. Look in your local law library. Here's a helpful
directory of courts. Familiarize yourself with unfamiliar courtrooms, and find out about the particular court and
the published rules of that court. Local rules are a matter that demand your attention. For example, you maybe
required to seek consent on certain matters before seeking a court order by motion. If you are a defender,
determine whether the local prosecutor has published written standards for the prosecution of cases. See, for
example, the 34 page set of standards published by the local prosecutor in Port Orchard, WA. [This office's
"cards on the table" approach merits emulation by prosecutors and admiration by defenders across the nation.]
Such standards provide a frame of reference for pretrial negotiations between the parties.

Investigative resources on the Internet: You'll find numerous investigative resources on the Internet. The feds
publish Crime Scene Investigation: A Guide for Law Enforcement. Here are several good resource pages,
Virtual Gumshoe , Public Records Sources, and Search Systems that will provide you with a guide to a world of
different information, e.g., alumni associations, cemeteries, criminal histories, UCC listings, departments of
corrections, area and zip codes, government records, hunting and fishing licenses, maps, locators, military
records, medical databases, motor vehicle records, property records, state licensing records, parole records,
bureaus of vital statistics, locators, etc. Here's another site with good investigative links. This one conducts low-
cost information searches on the web. Here's another fee-based outfit that may be of use in uncovering
background (1) and historical information, relatives, associates, corporate affiliations, bankruptcies, and
criminal and civil court records. These guys tell you something about how investigators do their jobs, plus
they'll sell you stuff for your detective kit and provide you with their list of "forensic experts." This PBS site
discusses various investigative techniques, e.g., ballistics, DNA, document examination, forensic anthropology,
geological examination, property search, timber dating, weapon dating, etc. This site discusses crime scene
investigation. Here's a descriptive list of the electronic databases available to investigators. Defenders searching
for relevant information should review the public information web resources favored or used by law
enforcement investigators in the locale, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9).

Tips from experienced private investigators: If you are a private defender (Public defenders and prosecutors
have paid investigators on their staffs.) trying to investigate your own cases on a shoestring budget, go to some
of the private investigators' web sites (1), (2) for some basic tips about how to conduct an investigation and how
to conduct free searches for information.. Of course, for clients with a fat wallet, there are a number of private
investigators whose services are for hire, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13). Check
their web sites out for how-to-do-it information, even if you can't afford to hire a P.I.

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 [Tip: Find out if there is an association of private investigators in your state. If so, contact it, find out whether it
has a listserve that you can join, and join. You can often obtain useful investigative advice from the PI
listserve.]

Military Records: Do you need your client's military records? When you need to obtain servicemen's records,
you don't do it through the V.A. (which doesn't retain such records). Go to the National Personnel Records
Center. The NPRC is part of the National Archives and Records Administration. You will need to complete
Form 180 and send it to the NPRC by U.S. mail. Help in completing the required form is available at this site
for military veterans and the next of kin, i.e., father, mother, son, daughter, sister,brother, or unremarried
spouse, of deceased former members of the military. [Note: Obtaining such records is a lengthy process that
may involve several months from the date of your request.] Such information may be useful in demonstrating
mental problems, military decorations, etc., and may be a source of names of potential character witnesses. If
you want to search the database of 20 million files of military personnel, this site bears investigation; it requires
registration (free) but does not require that registrants be military.

What makes things tick?: Sometimes, to understand your case and tell the story you need to learn how a thing
or process works. When your case involves a factual issue about the way something works or what it is or how
it influences other things, etc, you can start your inquiry with How Stuff Works. Occasionally, you may need to
know How Things Are Made. (This site is a good example of show-and-tell.) When faced with the necessity of
understanding scientific phenomena such as weather, fire, smoke, the human body, energy, etc., try the New
Scientist. Use the Google search box to get answers by typing in a decalrative statement in quotes without a ?
mark. Google looks for pages with the exact phrase.

Freedom of Information: Make use of the federal Freedom of Information Act (FOIA). When you think you
might need to make a request for information under the federal Freedom of Information Act, you may go to the
journalist/reporter's site that contains the letter forms you need along with all of the federal government
agencies that you may wish to petition for the information. Here are other useful FOIA sites (1), (2 Guide -2),
(3), (4), (5), (6), (7 - DC public defender's analysis of the FOIA and DC law). This law firm has a terrific set of
FOIA links. [This independent site run out of Syracuse University is great for keeping track of what federal law
enforcement agencies are up to.] [Texas Lawyers: The Texas Public Information Act is located in Chapter 552
of the Texas Govt. Code; Section 552.108 deals with requests for "Certain Law Enforcement and Prosecutorial
Information." Your request must be made to the governmental body having custody of the desired record. The
determination of whether a governmental body is required to provide the requested information made by the
Office of Texas Attorney General]

Useful Sites for Information: Here are a handful of subjects that can crop up during the investigation of a
criminal case along with some relevant Internet web sites that can provide specific information on the subjects
to help you flesh out your inquiry: Also, check Links.
• Climatology: If you need historical information about climate on some past date, this climatology and
meteorology site is useful. The U.S. Naval Observatory has information about sun and moon rise.(1 - single day
sunrise/sunset), (2)
• Weather: This site has hour-by-hour free information regarding weather conditions in an area.
• Maps: If you need maps, try these sites (1), (2), (3), (4), (5), (6). Many other map sites are listed on these
links (1), (2). Get maps and driving directions by punching in any street address to the Google search box.
• Aerial Photos: (1), (2)
• Geography: (1)
• Counties: (1)
• Time or Day: When time or day matters check these sites: (current time (1), (2), (3), (world), (zones),
(perpetual calendar (1), (2) ), (maritime), (duration between various dates).
• Measurements: Information regarding measurements is available at this site (1).

14
• Conversion: This site (1) helps you convert weight, mass, volume, speed, temperature, length, distance;
try this site (1) for common equivalent weights and measures and this one (1) for math.
• Calculators: Type in any math problem in the Google seach box.
• Broadcast News Footage: If you need footage of news broadcasts concerning your case, try these sites
(1), (2).
• Translators (Interpreters): If you need the services of a translator (interpreter), these sites (1 ), (2), (3)
may be helpful. Some of the translator sites also provide free online translation of a +- 150 words (1), (2), (3),
(4), (5 -Google). Here are a few online foreign language dictionaries (1), (2), (3 - Spanish), (4 - Spanish).
• Public Records: (1), (2), (3 - Public Data; $25 a year allows you 250 queries, e.g., name and address
from license plate, etc.)
• Offender Databases: For offender databases of all the states, try this site (1).
• Sex Offender Registries: Try these sites (1), (2).
• Criminal Records: Investigate them at these sites (1), (2), (3),.(4).
• People: Here are several sites that are helpful in locating people (1), (2), (3), (4), (5)., (6), (8), (9), (10),
(11), (12), (13), (14), (15), (16 - Biographies) You'll find more on the Links page.
• Estimated Value, Aerial Satellite Shot, Square Footage, Number of Baths and Bedrooms in Single-
Family Residences: (1 - You'll need the address and zip code; estimated values are supposed to have a 7-8%
median error; this web site tracks 48 million of the total 85 million single-family residences.)
• Birthdays: (1), (2).
• Reverse Phone Look-Up: (1), (2) (Links). [Note: For traditional numbers enter the name and address of
the person or business into Google's search box.]
• Addresses & ZIP Code: (1), (2 - lots more local info than just ZIPS).
• Internet Addresses: (1).
• Medical Expert Witnesses: As to experts, check out doctor witnesses at these sites (1), (2), (3 fee). For
step-by-step suggestions to check up on a medical expert click here.
• Medical Information: Medical information is available at this site (1). Look for information about
medicine at these sites (1), (2) and drugs at these sites medical index, street drug, and interactions. Here's a
handy medical dictionary and an atlas of the human body.
• Census: Here's the government data on population demographics.
• Licensed Occupations: Here is a site (1) providing information about licensed occupations in the various
states.
• World Facts: (1), (2), (3).
• Encyclopedia: (1), (2), (3).

Checking out the prosecution's (federal) practice guide: If you are defending a federal case, always check the
United States Attorney's Manual. This +2000 page set is the DOJ's guide for its prosecutors. The NACDL sells
it for $400 or you can download it for free. I suggest that every lawyer handling a federal criminal case
download the relevant section of the Title 9, known as the the Criminal Resource Manual. See Resources below.
Be sure to also review the U.S. Attorneys Bulletins in the FOIA Reading Room. Local prosecutors in major
metropolitan districts often have written rules governing the exercise of prosecutorial discretion. This
declaration of uniform policy is typically considered public information subject to disclosure. Familiarize
yourself with it.

Tracking the news: Track the news about your case of matters of interest by using the new Google Advanced
News Search to retrieve news articles from more than 4500 news outlets publishing on the Web. You can use
several parameters, e.g., date. locations, exact phrases, or publication, to scour the Web for relevant news
articles. Altavista and NewsNow also provide news search ability. If you are looking for news about a case, you
may find it at Find Articles. You can also customize your news by picking your topics on some rich news sites
(1). It is possible with the Rich Site Summary (RSS) XML format to get headline news, summaries, and source
links on specific topics, e.g. your high profile case, by connecting to a news feed (1); you need to download
an RSS newsreader (aggregator) such as NewzCrawler (PC), Headline Viewer (PC), Radio Userland (PC or
15
Mac), Net News Wire (Mac) or AmphetaDesk (PC or Mac). FeedDemon (fee) is said to be good. Two law
oriented aggregators are My Detod and Daily Whirl. Once you have the reader, you simply click on the link on
the news feed site that says "XML" to get news on your requested topic. Here are better explanations (1), (2) of
news tracking (This feature is very popular in the blogging community.). If you are interested in tracking
changes to a particular web site, that can also be done (1), (2).

Ceasing Investigation: When do you stop investigating? If inconsistencies or ambiguities in the gathered
information develop, further investigation may be warranted. But at some point, active investigation must cease.
You will decide, often using a cost benefit calculus, when to stop investigating. When you do stop
investigating, you will be proceeding to trial with the information you have collected. The next step will be to
organize, interpret, strategize, plan, and prepare, using the information gathered through informal and formal
discovery and investigation.

Analyzing and Interpreting Information - Generating a Supportable Story of the Case

Somewhere in the gathered information are the building blocks that will form the story of your case and support
your theory of the case.You build that from what information reveals and what it doesn't reveal. A workable
story has to have a strong rational foundation. It's got to hold water, i.e., it has to make sense.

How do you analyze and evaluate the information that you have gathered? You will have to identify
information that is inconsistent with other information. You will determine the facts that are truly in dispute.
You will also have to develop the skill of recognizing factual information that that is beyond dispute and learn
to visualizing the differing conclusions that can be drawn from facts that are beyond dispute. One can put
different spins on the same facts, depending on the premise. For example, if the facts show that the perpetrator
of a robbery threatened the victim with a handgun, the prosecutor's premise may be that the victim's fear
heightened her awareness and ,thus, made the subsequent eyewitness identification more reliable. The defense
premise from the same facts may be that the victim's fear for her safety blocked or dulled her perception and
made the subsequent eyewitness identification less reliable. The point is that we must explore the various
logical inferences that can be drawn from facts that are beyond dispute.

Brainstorming and Thinking Outside the Box with a Team Approach

What is brainstorming? Maybe it's best described as free thinking. They say that there's always a better way to
do things, if only we can find it. But new ideas are always delicate things. They can die in the draft of a doubtful
sigh or an off-hand comment. The theory underpinning brainstorming is that we may find an easier way to solve
a seemingly difficult problem if we uncritically open our minds and think about the situation in different and
imaginative ways. We brainstorm because we accept the possibility that if we've always done it that way, "that
way" may be wrong. To brainstorm effectively one must be willing to raise new possibilities and look at old
problems from new and untraditional angles. For example, with opening statement and argument, the
brainstormer might ask, "What could I conceivably say?" Concerning substantive proof, one might ask, "What
evidence could I conceivably introduce?" In each instance and before making any judgment, the brainstormer
would list all the possibilities, good and bad.

Brainstorming is also based on the theory that, when examining a problem. two heads are usually better than
one. A team approach to planning, investigating, and preparing a case is usually better than the solo method. If
you have to brainstorm by yourself, so be it. But there is synergy in brainstorming your case with colleagues.
The old saying "Too many cooks spoil the broth" doesn't apply when you are brainstorming. No single person
in your circle of advocate friends is as smart as the group as a whole. The whole point is that you get a superior
result with combined input and suggestion. We have only to look at the pretrial process to see this principle in
practice. Teamwork is indigenous to the investigative and litigative process. Detectives and crime scene
investigators typically work with a partner. Prosecutors and public defenders assigned to a particular court or
16
division, e.g., organized crime, family violence, usually office together. They constantly talk about their cases
and engage in "skull sessions" with their office mates, planning and preparing their cases. Prosecutors and P.D.s
typically try important cases in teams, with one lawyer sitting "first chair" and the other "riding shotgun." When
a trial judge appoints defense lawyers to represent an indigent in a very serious case, two or more lawyers may
be appointed.

If you are a private defender working with a partner or associates, you can bounce your case off of them. Solo
criminal defense practitioners should try to develop a trusting relationship with a colleague(s) or a mentor who
can be used as a sounding board for ideas. If you are a solo practitioner and can find someone, particularly a
more experienced defender, with whom to talk about your case, you may be able to avoid some major mistakes.
[Never discount experience.You may not be able to teach an old dog new tricks, but an old dog can often teach
you some old tricks.]

If you have to brainstorm on your own, one of the best places to do it is while commuting to work. In this day,
many city defenders have at least a 30 minute commute. Use the travel time to think about how you are going to
try your case. Use voice to text software package to covert a copy of your written investigation into voice form
on a CD and listen to it on an MP3 player during the commute. You can do the same with other written
material, such as your planned voir dire ,opening statement, cross, argument, etc.

So, what is the procedure for a brainstorming session? First, you gather your brainstorming group. It is best if
everyone is familiar with the case. Second, put a time limit on the session. Third, you, as the prompter-
facilitator, open the session by asking the group, "What is this case about?" Start a written list of the responses.
Put every response on a separate piece of paper, preferably a Post-It note. Keep the notes to the side, and don't
try to organize them or make them consistent. The Post-It notes are good because they allow you to organize the
responses at the very end of the session. When you have gathered all the answers to your first question, pose
other questions seeking reactions, facts, ideas, relevant examples and stories, etc. When the session is complete,
take the stack of notes and organize them into broad categories. Then, prune the contents of each category for
the thoughts that make sense in terms of consistency, continuity, clarity, and credibility.

Note that CaseSoft has several brief articles on trial preparation, one of which discusses brainstorming your
case.

Developing Your Case Theory

The theory (thesis) of your case is the answer you would give to someone in an elevator who asks you, "Do you
have a good case?" Your answer should be no more than a short paragraph explaining what your case is about
and why you should win it. If your oral elevator speech is less than a minute and has consistency, continuity,
clarity, and credibility, you've got your case theory. If you can explain it in 25 words or less it's probably a
splendid theory.

Sound simple? Your nutshell version of what you claim happened needs to be simple, but distilling the case to
this level will cost you some sweat, shoe leather, and skull sessions.

For the defender thinking about a defensive theory the cardinal rule is: Bad excuses are worse than none at all.
When you rely on a lame excuse or justification for your client's crime, you make the crime seem even worse in
the eyes of jurors. Most of us had a survey criminal law course in our first year of law school where we learned
a bit about the various common law defenses to crime. The training is always superficial. Once in practice, we
must revisit the law and study our state's crimes and defense with much greater intensity.

Finding a Unifying Theme That Summarizes Your Defensive Theory

17
Your case theme is the catchy headline, phrase, or short sentence that connects your various proofs to each other
and to the jury (1), (2). It's You can look for themes in a lot of places, e.g., advertising slogans (1), proverbs,
quotations (1), (2), (3) common phrases (1), poetry (1), (2), (3) stories (1), speeches (1), sermons (1), etc. See
the Opening Statement and Delivery of Jury Argument pages for extended discussions of resources for
developing case themes that you can present in opening, interweave into the facts and emphasize in closing. See
also the syllabus for my law school course "Opening and Closing" for a couple of hundred useful hyerlinks to
developing and selling your case theme.

In choosing a gripping case theme, consider the theme the other side may come up with. How will the other side
complete this sentence: "This case is about (The opposition's theme goes here.)" For example, prosecutors in a
case of alleged child abuse by a neighbor case might denote their case: "The sex offender next door." In a
white-collar fraud case, the governments theme might be: "The slippery slope from ambition to greed to
dishonesty."

Integrating Storytelling Techniques Into the Roadmap of Your Case

An Event
The old pond - A frog jumps in. Plop!

A Moral
The frog does not drink up the pond in which he lives. Lakota Sioux saying

In the courtroom, the lawyer who presents the best story usually rules. A story is a recounting of past events. To
be an effective trial lawyer, you must learn to be a storyteller. The oral tradition of American trials where
witnesses recreate true life events with testimony keeps the value of old-fashioned storytelling alive. Trials are
primarily narrative stories, that are presented by lawyers seeking to evoke in he jurors both a belief and the will
to act on that belief. The trial story is the principal vehicle by which the courtroom lawyer seeks to influence the
juror's mind. Other things , e.g., the lawyer's appearance, the witness' character, may sway the ultimate decision
, but the presentation of case story is the key to success. The degree to which a juror's mind is influenced
depends on the scope and content of the trial story and how it is told. A good trial story must be a shared
experience between the storyteller and the listening jurors. If the trial story is not about the jurors, if it doesn't
involve them and make them part of the moment, they won't listen. They'll tune it out and sit in the jury box
making up their own stories, i.e., daydreaming. Gripping trial stories are about facts and inferences, but they are
also about matters close to the heart. Lawyers don't win jury trials simply by cold analytical logic. The jurors
minds must be won over by your facts but their hearts are captivated by the impact of emotion that flow from
the story.

Before you can become an accomplished storyteller, you must become a proficient story organizer? Criminal
trials typically involve at least two stories of the case, one consistent with proof of guilt, e.g., "convenience
store hijacker binds, gags, and shoots two bound witnesses execution-style," and the other inconsistent with
proof of guilt, e.g., "wife shoots drunken, abusive, knife-wielding husband in self-defense." When the defense is
unable to find an affirmative story, cirmstances may limit the defense to muddling the middle of the
prosecution's story in an effort to create reasonable doubt of its verity.

In a single trial, there are often multiple, interlocking mini-stories each focusing on different time, place and
space, but comprising the "big picture." The way you organize and tell the story of your case may not always
determine the verdict. It will always have an influence on the outcome. Every story has plot, place, and
characters. Not only must the story of your case be well told with a plot, setting, background, conflict between a
protagonist (hero) and an antagonist (villain), a victim, interesting characters, obstacles, goals, mood, and a
proposed final resolution - it must be told in a manner that moves the jurors. If you can learn to tell a good
story, you will turn the jurors' ears into eyes.
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So, how do you convince the jurors that to accept your story is better than the opposition's. How do you put
yourself in the position to remind the jury in final argument: "Here's why our story of the case - our evidence
and our witnesses are better than theirs"? Start developing the story of your case by determining the premise
upon which it will be based. You'll need to understand the cast of characters. You'll need to identify and
develop the drama of your story. The dramatic parts of the story are the parts that aren't dull, the parts that have
action and in their way are entertaining. Your trial story also has to be about human relationships. Where is the
conflict? How is the conflict resolved? You will need to visualize and construct in storybook form each of the
key scenes or mental images that will be presented by evidence. The key scenes are the ones you want the jurors
to accept as gospel fact and carry with them into the deliberation room.

There is a methodology to storytelling. Stories need order. If you tell you story in snippets, the snippets must be
connected to the whole. Generally you tell your story in a linear manner, from start to finish. Think about a tray-
based slide show in which the slides and accompanying narrative are arranged haphazardly. The story doesn't
appear. A linear story flows better because its the way things happen in real life. A story may be linear and yet
somewhat confusing to the ear when there are digressions and disruptions of the storyline. [Here's an example
of a linear audio-visual story with lots of disruptions ands digressions that loop back into the narrative. It's
interesting, but would be hard to follow if it were entirely aural, i.e. sans photos.] Non-linear story telling is
dangerous - the facts tend to meander and unfold in chaotic order. Sometimes a movie, e.g., Memento, will
begin at the end and move backwards or will begin in the middle and move sideways, e.g. Pulp Fiction, Cold
Mountain, Kill Bill, and 21 Grams. Some movies, e.g., the classic Lawrence of Arabia, begin and end at the
end, e.g., Lawrence's death in a motorcycle accident. On the other hand, a movie may not only be linear but
presented in real time, e.g., In the Nick of Time where the protagonist must kill the Governor or his daughter
will be killed and the German Run Lola Run where a young woman named Lola must replace her boyfriend's
lost drug money or he'll he killed. Non-linear storytelling can be effective on the big screen, but it won't work
well in court, even with electronics. Flashbacks are also easier in film because they can combine sound, picture,
and written notice, e.g., "Four years earlier.". You don't want your jurors to labor to understand what is going
on. Why? Because you risk losing their attention during the important parts. The fact that things may finally
become clear at the end won't help if your jurors tuned out in the middle of what appeared to be an
incomprehensible story.

The story of the particular case on trial is not the only story that will emerge in the courtroom. Every competent
prosecutor and defender will have a bundle of good demonstrative stories. These are oral accounts of a real or
fictitious occurrence that help make a point. Often they are told in jury argument. The anecdotal stories are
separate and apart from the factual story of the particular case. Anecdotal stories help the advocate substantiate
key points and/or endorse certain human values. As your trial lawyering skills grow, you'll learn, for example,
how to turn personal experiences into stories that make a point; you'll also learn how to adopt and adapt
parables, legends, literature, current events, etc., into brief stories that illustrate your point. Start yourself a
"story bank" of concise stories, no more than a minute or two in length, that can be used to illustrate and
illuminate key points that recur in criminal cases. Chose the words carefully. Practice telling them over and
over.. Keep the stories that fit comfortably in your repertoire.

A properly prepared and presented trial story will involve characters who are animated by emotion. The story
will also seek to generate crucial emotional feelings in the jurors. There are many emotions that can flow from
your story and its characters. These include: anger, admiration, annoyance, anxiety, apathy, concern, confusion,
contentment, curiosity, desire, despair, excitement, fear, forgiveness, fury, gratitude, grief, guilt, happiness,
hate, hope, hostility, jealousy, love, passion, pleasure, thrill, revenge, sadness, shame, surprise, suspicion,
sympathy, worry, etc. To plumb and evoke an emotion or feeling, you must develop its specific fact based
aspects. Don't just ask the witness if a particular character entertained a particular emotional feeling, e.g., "Did
the defendant hate the alleged victim?" Present specific facts showing the jurors that the character entertained
the emotion. Some times you may want to use direct and cross to explore the facts that reflect the emotion
19
without asking the witness to label the emotion. Let the jurors rely on the facts to draw the conclusion that a
character had a particular emotion. Don't ask the jurors to admire or dislike a character in the story. Give them
specific factual reasons for the desired feeling. As you might imagine, prosecution stories are often about the
accused's wickedness and the victim's loss. Such stories may engender emotions such as anger, empathy, grief,
hate, sorrow, vengeance, etc.

Aside from factual proof, other influences that affect the palatability of your case story emerge during a trial.
These influences include the courtroom behavior of all the witnesses, the accused, and the lawyers, and, very
importantly, the fundamental attitudinal mindsets of the jurors themselves.

The same story may influence people differently. Why? Because society is a mixed salad. As a result of
informal and formal acquisition of knowledge in a multi-cultural world, every adult among us has developed
fundamental individual views about how the world works. These personal beliefs are relatively fixed, moreso as
we age and to the extent that we feel emotionally attached to them. From time to time, we may revisit our
beliefs and readjust them. But the process of changing the way we we think is a slow one, hardly likely to
change during a trial. So, for any trial lawyer to believe that s/he can change entrenched beliefs of a
heterogeneous group of jurors during a brief three or four day trial is ludicrous.

On the other hand, some stories evoke similar logical and emotional responses in most of us. We may all laugh
at the same juncture during a comedy, just as we all may simultaneously fight back tears or dab at our eyes
during a "tear jerker." There are some shared values and common motivators that unify and move almost all of
us. For example, most of us don't cotton to betrayal, cowardice, dishonesty, treachery, etc. On the other hand,
we may value charity, dignity, fairness, faith, friendship, forgiveness, humility, etc. If you want to rely on
emotion, you typically find it in the story not in the jurors. Jurors react to the story, the story doesn't react to the
jurors. The message for lawyers is this - form, tell, and argue your trial story around one or more values shared
by the jurors and that story will influence and persuade them to action.

Here are some web-based storytelling resources: (1) You can learn a lot about telling a story by reading a bunch
of them. Unfortunately, most criminal defense lawyers don't have time to delve deeply into literature. If you are
time-pressed , here's an idea for you. Read the modern day equivalent of Cliff Notes on the Internet. You'll find
some dandy summaries of great stories on web sites (1), (2), (3), (4), (5), (6), (7) designed for college students
who are too busy having fun to study. You will also find sites devoted to summary, breakdown, and analysis of
drama (theater) (1) and poetry (1), (2).These sites are written by very smart people who are experts in story
analysis for an audience of slovenly undergrad students who want to be fed from the breast and are willing to
pay for it. The great thing about the sites is that the story analysis is there for free as a teaser for the students.
The constituent parts of some of the best stories of all time are sorted out into plot, characters, setting, theme(s),
;conflict, mood and background; then the story is summarized (as lawyers might do in opening and closing) and
analyzed (as lawyers might do in closing). If you are an aural learner, try listening to old-time radio programs
(1). If you want to work on shaping up your storytelling voice, try reading the poetry script along with Garrison
Keillor on archives from PBS's daily Writer's Almanac.

Some trial stories are difficult to tell. Some are difficult to hear. Yet, they must be told. TV, movies, and videos
have conditioned jurors to expect a visual element in stories. Trial lawyers meet that expectancy by supporting
their trial stories with rich visuals. Electronic technology allows us to make visuals even more stirring and
appealing to modern day jurors.

Pretrial Readiness to Be A Trial Advocate

It almost goes without saying that you must have a handle on the substantive law of crimes, criminal procedure,
and the rules of evidence when you enter the trial court to litigate a criminal case, whether from the prosecution
or defense table. You must be able to perform the tasks of the trial advocate, e.g., engage in motion practice,
20
participate in jury voir dire, open your case, conduct a direct examination of your witnesses, establish necessary
foundations (predicates) for introduction of your evidence, make and respond to objections and offers of proof,
cross-examine opposition witnesses, deal with expert testimony, and argue your case. In short, your trial
advocacy skills must be up to snuff when you enter the courtroom. How do you hone your courtroom skills
without being in the courtroom? After all, you learn it by doing it, practicing on your clients, making lots of
mistakes in your early days and, hopefully, learning from them, as you go along. Can you get ready to be a trial
advocate before the trial begins?

• Keep up with developments in the field of trial tactics, jury deselection, opening, direct, cross, expert
testimony , objections, courtroom technology, exhibits, identification, motions, and criminal evidence (1 - links)
and criminal procedure (1).
• Your demeanor is vital to courtroom success. What you do and say and how you do it can turn jurors
and judges off or on. Try to get it right.
• Plan your mode of dress for each day of trial. Give thought to your wardrobe and its influence on the
way the the jury will perceive you and your case story.
• Think about how you will present the story in opening and closing, e.g., gestures, nuances, accents. This
requires practice as well as planning (1), (2).

Legal Research - Law on the Internet

To do your job in the courtroom, you must be prepared. To be prepared you must know how to identify relevant
legal issues, analyze them, and posit answers to them. Boiled down, you must know how to perform legal
research and legal writing (1), (2), (3), (4). To perform these two skills, you must have access to legal materials.
The following material is designed to help the new criminal lawyer without substantial financial resources
traverse the minefield of accessing information on the Internet. Tip: If you do legal and factual research on the
Internet, be sure to obtain high speed Internet access connections, e.g., DSL. Dial-ups are way too slow for web-
based research work.

Sites Where You Have to Pay for Research Access: Eventually trial lawyers have to read statutes and cases.
You can buy the books and/or access the material by computer. Because they are free to law students, we are
taught in law school to depend on the fee-based legal research giants like Westlaw (my personal favorite -
1800WESTLAW) and Lexis (180045LEXIS). There is also fee-based Loislaw and the new, much less
expensive Versuslaw. To its credit, Lexisone does offer a legal guide giving you free access to state resources
for research ; it also provides limited free access to USSC cases from 1790 and to state cases from 1998. When
you've accumulated some big bucks after several years of practicing on a shoestring, you can think about
signing up for service with one of the big research giants. But in the nascent years,the new defender should look
for freebies.

Free On-line Research Sources: For the new solo criminal defense practitioner, the tab for monthly access to
one of the big research giants may be financially prohibitive. Don't fret. There's already an enormous amount of
free research access and useful information out there. See the CCJA Links page. I predict that more and more
not-for-profit organizations with altruistic motives are going to make their work product available to struggling
young lawyers without extracting a hefty membership fee. For a start, here's a site with 1400 sources for state
and federal court rules, forms, and dockets. I like the Washburn University Web SIte for its comprehensive
links to a variety of subjects, including legal research. Here are a couple of federal research guides (1), (2). The
Library of Congress provides you with a free Guide to Online Research. Substantive criminal law , procedure,
and evidence law will have a major impact on on the result you will achieve at trial. There are numerous on-line
legal research sources (1), (2), (3). You can make a free copy of relevant local rules FedCt, statutes (1), (2),
(3), (4), Federal Register, CFR, USC, ruling case law, USSC, USSC Briefs, USSC Research Resources, Cases
Pending on Docket of USSC, Fed. Cir Ct., Fed. Dist Ct., states, codes, Texas Register, Texas Legislative
Research Library, key rules of evidence, and relevant procedure for each phase of the pretrial and trial process.
21
Scan or place them in a notebook titled " Statutes and Cases." The rules of evidence are the coin of the realm in
the courtroom.. Study the cases and rules and learn how to apply them in structuring your case, limiting the
opposition's case, and making and meeting objections. Here's a partial list of links to state court legal opinions:
Alabama, Alaska: (AK Supreme Court) (AK Lower Courts), Arkansas, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Hawaii, Kansas: (KS Lower Courts1) (KS Supreme
Court), Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri,
Montana (closed to public), Nebraska (Alt.), Nevada, New Hampshire, New Jersey, New Mexico, New York
(Alt.), North Carolina, North Dakota, Ohio, Oklahoma: Supreme Court; Court Criminal Appeals; Oregon,
Pennsylvania, Rhode Island, South Carolina, South Dakota (See "Opinions"), Tennessee, Texas: (Supreme
Court), (Court of Criminal Appeals), (Court of Appeals), Utah, Vermont, Virginia (Alt.), Washington, West
Virginia, Wisconsin, Wyoming. . Reference Desk is a delightful site for a home page, and it contains an
incredible number of at-your-fingertips links to useful factual sources. Search the web for law reviews and
journals and check the CCJA Criminal Law Scholarship page for recent articles on crimes and defenses. If you
try drug cases, try this. If you try death penalty cases, subscribe to the Capital Defense Weekly, an email
newsletter with the cutting-edge information. [Texas Note: Texas criminal lawyers can obtain free Case Mail
email notification regarding criminal cases they have chosen to follow, as well as Opinion Tracking service that
notifies them when any appellate court releases an opinion in a specified case of interest, simply by going to this
Texas Court of Criminal Appeals site, scrolling to the bottom of the page and signing up as a new user.] For
useful reading, here's an excellent free pdf downloadable 191 page manual written by a judge and dealing with
many of the recurrent evidentiary problems in criminal cases. If your case involves drug control or money
laundering, you may find this collection of the foreign criminal laws of 153 countries helpful. Even Google has
a search for scholarly papers page. Here is the Bill of Rights with other historical documents. Use these sites as
guides to legal research on the Internet (1), (2), (3). When you start writing legal briefs and memoranda, check
this style source for some excellent guidance with your legal writing (1). These are good sources for guidance re
citation (1), (2). The federal and state courts [The URL for state court systems is: http://:www.courts.state.
__.us (Add the small case two-letter abbreviation of the state,e.g., tx , in the blank space), e.g.,
http://www.courts.state.tx.us] are available on line. Regarding written legal communications of all sorts, there
are a slough of web sites guiding you to the use of proper grammar, punctuation, style, and citation on the
CCJA Law Office Management page. [Personal Prediction: There are thousands of brilliant law professors
living comfortable lives studying the intricacies of the law in the stress-free tenured environs of university law
schools. Many write casebooks and treatises for royalty money provided by the big legal publishing houses.
Sooner or later, some of these very knowledgeable folks are going to provide a service to the Bar by dispensing
free practice-useful information to practitioners. How will they do it? Not through the traditional student-edited
law reviews and journals. They'll do it on the blogs (weblogs search) that most now use mainly for telling us
how interesting they are and for personal discourse on current events with a legal flavor. Blogs, as you may
know, are low cost personal web sites built with a special type of software that displays content as postings in
reverse chronological order. People who don't want to take the time to go to a blog can subscribe and, through a
"newsreader," can receive new contents of the blog as it is added. Notice the trend toward law-oriented blogs,
often called "blawgs" for "legal weblogs," written by some of the nation's outstanding law professors, e.g., (1),
(2), (3), (4), (5), (6), (7), (8), (9), (10), (11). I trust that many of the blawgs will begin to eschew the "all
attitude - all opinion - no information" approach. Already, you'll find some that provide links to practical
information, e.g., sentencing, paternity testing, infirmities of the polygraph, etc., on a few of these sites. I
believe more will come. A few brave judges have even cited blawgs as secondary authority. A terrific example
is this site which is a compendium of numerous web blawgs covering activity in the various federal districts. In
addition, a substantial number of established practicing lawyers are committing time and effort to establishing
useful blawgs, e.g., (1), (2), (3), (4). To get a taste of blawgs try this site which gathers headlines from a number
of prominent blawg.]

Jury Instructions

22
Trial judges are taught early on not to be creative in drafting jury instructions. Instead, they rely on what are
called uniform (pattern, model) jury instructions. The pattern instructions are often prepared by the state bar
association or a statewide committee of judges. Jurors are not required to know anything about the written law
when they are empanelled. They receive the law from the court at the end of the case and apply that law to the
facts as they find them to be. Consequently, the operative instructions are of great significance.

Creating an instruction folder: Early on in your preparation, create a section in your pretrial notebook and title it
"Jury Instructions." Gather together the jury instructions that you anticipate will be given in the case. This
includes the definitions of the substantive and inchoate crimes and the defenses you may be relied upon. Include
the customary admonitions that are given concerning the failure to testify, the burden of proof, reasonable
doubt, the presumption of innocence, etc. Put a copy of these instructions in your pretrial and trial notebooks.
Because they include all the applicable elements of the alleged crime(s) and potential defenses, you can use
them as a guide in investigating, planning, and presenting your case. Every jurisdiction will have a set of pattern
jury charges for use in criminal cases. Make yourself a copy from the local law library or buy the books or
CDS. If you have a CD, copy it to the hard drive of your computer and keep the CD as a backup. Most courts
have a database of standard instructions. Often the court reporter or court coordinator will be in charge of
assembling the court's charge. You can sometimes obtain copies of standard instructions from those court
personnel. Some jurisdictions have standard instructions online. e.g., the First , Fifth, Seventh, Eighth, Ninth
(You can download the 2004 version of this outstanding Circuit's Model Criminal Law Instructions in pdf
format or Wordperfect.), and Eleventh Federal Circuit Courts of Appeal. There are also some commercial sites
that will sell you instructions (1), together with some other resources that are free. A number of statewide
organizations make free pattern instructions available on line, e.g., (NY), (TX), (NJ). Check your jurisdiction
(1).

Bringing the instructions home to the jurors: If you want the jury to understand certain portions of the
instructions, you'll need to make it happen. If the practice of the court is to provide the jury with a set of written
instructions, ask the trial judge's permission to give each juror an individual copy of the instructions. This
makes each juror independent of the foreperson in determining what the instructions say. Also, if each juror has
a copy of the instructions during argument, you can refer the jurors to specific portions of interest as you discuss
those paragraphs in argument. Use PowerPoint slides to put call-outs of selected portions of the instructions on
a screen or monitor. If you are going to discuss whether certain facts fall within the scope of the instruction, you
may want to coordinate those facts into the visual of the instruction.

Openings and Arguments

Learning how to speak directly to the jurors: In presenting jury speeches, what do you say (intention), what
order do you say it in (sequence), how do you remember what to say (memory), how do you say it well
(delivery style), and how do you you use non-verbal communicators to enhance your verbals (kinesics)? Your
linguistic practices play a big role in how persuasive you are when you are given the opportunity to speak
directly to the jurors. You'll need to know how to use figures of speech, e.g., analogies and rhetorical questions
that won't backfire. You'll need to know how to construct a hook or grabber to gain the attention of the jurors at
the outset of your openings and arguments. You'll need to know how to dovetail facts into the instructions of
law and how to argue logical inferences, rather than unsupported conclusions. Rather than spouting law school
legalisms like an arrogant popinjay, you'll need to use expressive language that underscores the strongest points
of your case and reduces the issues to the level common sense. You'll need to learn to sort out and focus your
argument on the issues that are in controversy rather than those that are undisputed and indisputable. You'll
need to learn how to tell important parts of your story in the present tense, rather than the past. You'll need to
learn how to smoothly make the transition or "change gears" from one topic to another. You'll need to learn how
to present and argue credibility issues when they are pertinent.You'll need to know how to repair the
weaknesses in your case and confront and neutralize the strengths or your opponent's arguments.

23
If you want to master the art of getting jurors to do something you want done because the jurors want to do it,
constantly try to make yourself a better communicator. Words are the coin of the realm in courtrooms Start a
file of impact openings and arguments that you might be able to use in your case. Check this book of over 5000
sample jury arguments in criminal cases. Keep a tape recorder or post-it notepad nearby and jot down your
argument brainstorms when they occur. Otherwise, you'll forget 90% of them. Check these sites for lots of ideas
about how to prepare openings and arguments, plus some samples, tips, and transcripts. Those who take my law
school course - Opening Statements and Jury Argument - will find a plethora of additional information about
persuasion through eloquence on my password protected class web site.

Litigation Strategies & Tactics

Create a journal and fill it with thoughts to jolt your introspectivity and strength to go forward into trial: Much
like the 12-step program members who read an inspirational passage at the beginning of the day to bolster their
efforts to live a clean and sober life, you may find it useful to collect and read inspirational thoughts as a way of
getting yourself properly psyched to carry the torch at trial. It's simple. Just begin a little collection of thoughts
that inspire you: I have a whole journal filled with brief insights that I find inspirational, e.g., You are the
hammer, not the anvil. / Boldness augments courage, hesitation augments fear. / A confrontational approach is
not always best. There is more than one way to skin a cat. / As Napoleon said in discussing war," We often get
in quicker by the back door than the front." / Divide the fire and you can put it out easier. Within the bounds of
ethics, create numerous barriers for your opponent and few for yourself. Stretch the opposition thin.

Scouting out the trial judge: As mentioned previously, know the judge's practices and habits. In many
jurisdictions you will find published benchbooks that describe the likes and dislikes of the local judges. It's
always good to know the "pet peeves"of the person who will be refereeing your trial. For dope on federal
judges look at the Federal Judges Biographical Database. You can also visit your local law library and consult
Aspen's Almanac of Federal Judiciary. As previously mentioned, there may be a local bench book describing
the practices of the state court judges in your jurisdiction. If you practice in federal court, take time to download
the 254 page free Judge's Benchbook for United States District Judges. It's a toolkit used by many federal
judges because it informs them, in a step-by-step manner, how to handle various problems that arise in
contested cases. Another helpful source for free downloading is the 191 page Manual on Recurring Problems in
Criminal Trials, written by a federal judge. Beware: Some web sites will try to sell you this information, even
though its free for the taking.

Scouting out the opponent: Know the opponent's practices and habits. In many metropolitan jurisdictions, the
local prosecutor's office will publish a manual of policy and operations that details how the elected prosecutor
wants the deputy prosecutors to exercise their prosecutorial discretion. If you practice in federal courts you will
want to access and perhaps download the free United States Attorney's Manual. See Additional Pretrial
Resources below.

Scout out the opposing experts: Know the opposition's experts. Many crime labs have protocols of standard
procedure for testing. Secure and read them. If you practice in federal court and have a case involving expert
testimony, you will want to refer to the free FBI Lab Handbook. It's free, current (2003), and packed with
valuable information about many forms of scientific evidence.

Coordinate with co-defendant's counsel in multi-defendant case: (1 - 27 pages re representing a client in a multi-
defendant conspiracy case), (2, 3 , 4 - joint defense agreements)

Strategize: Read as much as you can about trial strategy. There are numerous basic rules, e.g., don't call the
defendant as a witness in his own behalf if you are ahead when the prosecution rests, and lots of sophisticated
musings in the voluminous advocacy literature available to you. A lot of trial practice is played in a six-inch
courtroom, the forum between your ears. If you want some suggestions for free readings in your local law
24
library, look at the CCJA Bibliography. Sometimes you will find good strategies in unlikely places. For
example, the thirteen chapters of The Art of War (1) (2), (3), (4) by the great general Sun Tzu contain
numerous stratagems for both conquering an enemy and remaining unconquerable in time of war. The general
felt that "all warfare is based on deception." Although your courtroom foe is an adversary not an enemy, you
may find some of Sun Tsu's suggestions applicable to courtroom battles, e.g., if the opposition is rested, force
them to exert themselves; whoever occupies the battleground first and awaits the enemy will be at ease, and
whoever must race to the conflict will be fatigued; if they are angry, perturb them; if they are united, cause them
to be separated; be deferential to foster their arrogance; determine the enemy's disposition of force and
concentrate where they are fragmented; attack where they are unprepared; don't let the enemy know where you
will attack him because if your point of attack is not known, the enemy must prepare to defend all his positions;
go forth where they will not expect it; although you are capable, display incapability to them; when employing
your forces, feign inactivity; when you objective is at hand, make it appear distant; if your enemy is fording a
river, let half of it pass to the other side before attacking it; when engaging the enemy on foreign ground, one
who does not employ local guides cannot gain advantage of terrain; before engagement, determine whether the
majority of factors are in your favor; if you cannot be victorious, assume a defensive posture; know yourself
and your enemy - if you know yourself and know your enemy, you will be victorious; if you know yourself and
do not know your enemy, you will sometimes be victorious; if you know neither yourself nor your enemy, you
will be defeated.

Trial Tips: Here are some defense trial practice tips for preparing your case.

Checklists

Human memory is fallible. It's not possible to remember everything that you need to do in preparing your case.
One solution is to develop and use checklists. Many defense trial practice books contain checklists. You may
even find checklists on the Internet. ( 1 - checklist for handling capital cases). Checklists come in handy in a
variety of situations, e.g., motions, proof, predicates. Like a pilot before takeoff, you can use your checklists to
ensure that you don't overlook important matters. It's not particularly difficult to develop checklists if you are a
skilled and seasoned practitioner. If you are a new criminal defense lawyer, you may have to sweat bullets to
develop your own first series of checklists. The value of creating case checklists is that if forces you to step
back and take a hard look at the way you want to approach your cases. Once you have a checklist ,you can save
it, improve it, and use it over and over. Just document the general and specific steps that lead up and into trial,
e.g., investigation completed, formal and informal discovery completed, lay and expert witnesses interview and
prepared, pretrial motions prepared and presented, trial motions readied, notices filed, voir dire-opening-cross-
summation prepared and practiced, file (pretrial and trial notebooks) organized, exhibits prepared and reviewed,
exhibit list completed, demonstrative visuals prepared and reviewed, subpoenas issued, witnesses alerted, etc.
Within each segment of the trial, e.g., voir dire, opening, direct, cross, experts, exhibits, summation etc., you
can prepare standard checklists that can be modified for the particular case. For example, your standard voir
dire checklist might include some of the following: introduce parties, reason for voir dire, length of trial,
explain defense, acquainted with parties or witnesses, knowledge of case, burden of proof, presumption of
innocence, reasonable doubt, personal data of juror (occupation, length, duties, marital status, spouse's
occupation, children, civic organizations, previous involvement in criminal cases,etc.) and so on.

Notebooks to Help Manage Your Case - Pretrial and Trial

Using a trial notebook:: Your plan of attack and defense should appear in black-and-white in your pretrial and
trial notebooks. The notebook can be paper or electronic. Most new lawyers should go with the electronic trial
notebook.

Managing Your Case with an Electronic Trial Notebook: There are a number of support software packages that
can help with litigation and investigation management of your case. Two of these information management
25
systems that have received some positive plaudits are Casemap/Time Map (two separate software packages
from CaseSoft, the first being litigation support and the second being a time-line developer) and WinForce
(designed for criminal cases by a former federal prosecutor and billing itself as storing and organizing needed
data and continually updating itself with notes, interviews, and testimony). The functions of Casemap/Time
software in handling massive discovery in complex litigation are the subject of this nine page article (1). There
are imaging and online database service providers that can help with the management and security of
documents. When you are preparing to provide the opposition with discovery or counter-discovery and want to
number the pages you are delivering or scanning, it may be useful to try a software program that numbers each
page as you run them through an ink-jet printer.

Using Topic Dividers for the Paper/Electronic Notebook: Your pretrial notebook should contain separate tabbed
dividers. The subjects may vary, but a common approach is to have dividers with such subjects as: Things To
Do , Client Information, Fee Agreement, Police Reports, Witness Statements, Preliminary Hearing, Grand Jury,
Pretrial Brainstorms, Discovery, Pretrial Motions, Research, Exhibits/Visuals, and Game Plan. If you have a
separate trial notebook for trial, it should contain dividers covering such basic subjects as: Jury Selection,
Opening Statement, Experts, Prosecution Witnesses, Defense Witnesses, Jury Instructions, Argument,
Punishment, Errors for Motion for New Trial. Here are a couple of lawyer generated articles describing how to
prepare and utilize a trial notebook: (1), (2).

Getting ready for each witness: Use a pocket divider in your three-ring binder paper notebook to store your
planned questioning of each witness.Have a section for each witness in your electronic notebook.

Preparing Exhibits, Visuals and a Trial Kit for Courtroom Presentation

Planning the visual aspect of your case story: Some things are beyond the realm of words. Some things can only
be understood by being seen. Like it or not, defenders and prosecutors alike must present something more than
a case of words. Visuals are a necessity. This is good because visuals can make a good case theory more
understandable and palatable. You'll need to plan and prepare your visuals well before trial.

Learning how to use technology to assist your presentation: Check the technology page for help in preparing
electronic visuals. PowerPoint seems to be the linear software of choice for those who first put their toes in the
water by plugging their computers into the electronic courtroom, though there are other linear software
packages that do an equally good job, e.g., Corel Presentations. For those who like the flexibility of moving
electronically at will from one item to another, rather than progressing in a linear fashion, the most popular
choice from anecdotal reports appears to the Sanctions II case presentation software from Verdict Systems in
Tempe, Arizona. Prosecutors rave about the most recent version of Sanctions II; it seems to run around $600,
plus an additional fee for annual support. Defenders with presentation savvy should definitely check it out.

Preparing a trial kit for courtroom support: You will need a trial kit that contains some hardware. Most of the
items will fit in a large briefcase. Depending on the accessories provided by the court, you may need a portable
easel, flip chart, dry erase board, overhead projector, video document camera, etc. But you will probably always
need the following:
pens (red, black)
pencils and portable pencil sharpener
tabletop pencil/pen holder
legal pads
colored magic markers
colored dry erase pens and an eraser
laser pointer (preferably green rather than red) & batteries
post-it notes
colored flags
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 colored dots
glue stick
coiled measuring tape (50' or more)
scissors
a cheap plastic tarp (Wal-Mart or Sears/K-Mart variety)*
paper clips
stapler & staples
roll of masking tape roll of clear tape blank overhead transparencies
artist's portfolio carrying case for charts
portable tape recorder & extra batteries [Note: Some time ago, the FBI and DEA switched to
digital recorders for undercover work; police undercover agencies are also doing so; you may want to consider
by buying digital rather than analog.]
Polaroid camera & film extension cord
bottle of water chap stick
throat lozenges

Additional Pretrial Resources

+ Crime Scene Investigation: This is the earlier January 2000 free download of the 58 page FBI publication
describing appropriate procedure in CSI. This is another source for the same 2000 manual. This college criminal
justice professor's site has some information about crime scene investigation from the police viewpoint, plus
some many links. The Wisconsin Defender with all of its back issues on file, provides some good practical
advice regarding defense preparation and performance.

+ United States Attorneys Manual: As mentioned above, this one is a "must have" and the "best buy" for anyone
actively engaged in criminal defense practice even though they don't have much federal practice; the manual is
also worth the price for state prosecutors who are trying to improve their craft. The set totals more than 2000
pages and covers the waterfront of federal criminal prosecution from the government prosecutor's standpoint.
It's a free download from the Department of Justice. This prosecutor's notebook can be particularly useful in
cases where you need to know the proscribed conduct that must be followed, e.g., dealing with informants.
Also, be sure to access the FOIA Reading Room for the U.S. Attorneys Bulletin.

+ FBI Manual on Investigative Operations and Guidelines (MIOG): This one can be obtained on CD for
approximately $100 from the NACDL. This one is useful to defenders in preparing to meet FBI investigations,
e.g., cross-examination re practice concerning confidential informants.

+ Guide for Explosion and Bombing Scene Investigation, National Institute of Justice: Explores the
development of procedures for identification, collection and preservation of evidence connected to explosion
and bomb scenes. The Guide is available from the National Technical Information Service at 703 605-6000.
You'll have to pay a total of about $30 for this publication.

+ ATF (Bureau of Alcohol, Tobacco and Firearms) Manuals: You can order a number of free handbooks, plans,
and policy statements that relate to the ATF (the folks who raided the Waco Davidian complex in the 90's);
these include: Criminal Enforcement Investigative Reports: Electronic Surveillance; Surveillance of Premises,
Vehicles and Persons; Investigative Priorities, Procedures and Techniques; Regulatory Enforcement Inspector
Handbook; ATF Firearms Policy; National Response Plan. Order these from the ATF in writing. The ATF also
has a CD entitled ATF Law Enforcement Guide to Explosives Incident Reporting that may be obtainable. For
information, the ATF can be reached at 202-927-8480. NDAA-APRI also publishes a 28 page prosecutor's
guide to the workings of the ATF.

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+ DEA Agent's Manual: You can obtain this publication in a CD-ROM from the DEA by written request.
Further information can be obtained by calling the DEA at 202-872-8600. The cost is approximately $60.
Unfortunately, the publication you receive from the DEA doesn't include the chapter on dealing with
confidential informants. You should be able to purchase the entire publication from NACDL.

+ United States Customs - Personal Search Handbook, Dept. of Treasury, United States Customs Service: This
one is free. You'll have to obtain it via a Freedom of Information request. See the discussion above and Links
for the procedures for obtaining information under the FOIA. The U.S. Customs Service may be reached at 202-
927-0227.

+ Investigation: - Here are two very good CSI criminal law links, particularly in the various fields of forensic
science, (1), (2). This is a good bibliography of books written on the subject of investigation of criminal cases
including CSI and forensic evidence. Finally, here's a good bibliography of useful and informative criminology
and criminal law texts.

+ Do-It-Yourself Mock Trial - If you are working on a shoestring budget, you can try staging your own mock
trial, sans jury consultant. For guidance, take a look at the ABA's "Putting On Mock Trials." This 52 page
publication is designed for schools, but you can adapt it.

Keep pulling the plow. Keep turning the crank.

Run the risk of wearing out rather than rusting out.

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