What I’m Looking for When I Review the Evidence Against My Client
One of the first things clients want after hiring me is the discovery. Sometimes they expect that because they hired a lawyer today, I should have all of the evidence in the case tomorrow. Unfortunately, it doesn’t work that way.
What we receive and when we receive it can vary considerably depending on where the case is pending. A federal case is different from a state case. One city may handle discovery differently from another. In district court, we may initially have little more than a police report, while a case that reaches circuit court can involve a much more extensive production of reports, video, statements and other evidence. So when a client wants to meet immediately to discuss the evidence, sometimes the answer is simply that I don’t have enough of it yet to have a meaningful conversation.
Once I do, I usually start with a few basic questions. What has my client admitted to? What is the actual allegation? What do the witnesses say happened? From there, I start building out the who, what, when, where and why. And as I’m doing that, one of the biggest things I’m looking for is what isn’t there.
That process is important because what a client remembers or initially tells me and what I eventually see in the discovery do not always match. That happens a lot. Sometimes I can show a client a video and he agrees that it changes his recollection of what happened. Sometimes he thinks the video has been manipulated or doesn’t show the entire situation. Sometimes there is a reasonable explanation for the difference. Whatever the response is, we have to deal with the evidence that actually exists because, if the case goes to trial, that is what a jury is ultimately going to see.
I don’t necessarily sit every client down and make him watch every minute of every video with me. I explain what I’ve reviewed, what I think is important and what I think it means for the case. If the client wants to see the evidence, we’ll go through it. The point isn’t simply to hand somebody a stack of discovery and say, “Here is your case.” Part of my job is figuring out what in that stack actually matters.
And I’m not only looking for evidence that helps us.
In many ways, discovery should contain the strongest evidence the State has against my client. I need to know what that evidence is. If there is a damaging statement, I need to know about it. If there is a witness who identifies my client, I need to understand what that witness says. If there is video, I want to know what it shows. You can’t develop a defense by ignoring the bad evidence and looking only for things you want to see.
But the opposite is also true. If I expect strong evidence to be there and it isn’t, that can be just as important.
Sometimes what is missing tells me something about the strength of the case. Other times it tells me something about the investigation itself. Clients will ask why the police didn’t interview a particular person who they believe would have helped them, or why investigators followed one lead but didn’t follow another. Those are fair questions. Police officers are human, and investigations aren’t always complete. Sometimes an investigation becomes focused on proving a particular theory of what happened rather than continuing to look for evidence that might point in another direction.
That matters for more than just preparing for a possible trial. It can also matter in how the prosecutor ultimately views the case.
District attorneys handle a tremendous number of cases. When a prosecutor picks up my client’s file, much of what he or she initially knows about that case is going to come from the investigation that has been presented to them. If the police report tells one version of what happened, but an important witness was never interviewed, the prosecutor may not know what that person has to say. If evidence wasn’t collected, it obviously isn’t going to appear in the file. And sometimes there is information already in the discovery that I believe deserves more attention than it initially received.
I see it as part of my job to help fill in those gaps.
I’m not simply reviewing discovery to find a technical problem I can use in court. I’m looking at what is there, what isn’t there and what additional information we may be able to develop. Sometimes that means having an investigator speak with someone law enforcement never interviewed. Sometimes there is information about the circumstances of the case that isn’t reflected in the police report. Sometimes we can point the prosecutor toward evidence that was already there but may change how the case is viewed when considered in a different context.
None of that guarantees the prosecutor is going to agree with us. Just like I can’t guarantee a client a dismissal, I can’t guarantee that presenting additional information will change the State’s position. But sometimes it does. I’ve had situations where providing additional information or pointing out something missing from the investigation has changed the prosecutor’s perspective on a case.
That’s an important part of criminal defense that I don’t think people always see. We aren’t limited to reacting to whatever the State hands us. We need to investigate, develop our side of the case and make sure the people making decisions about our client’s future have an opportunity to see more than the original accusation.
That’s also why I don’t necessarily view a police investigation as the finished product. It’s the starting point. The discovery tells me what law enforcement found and what the State has to work with. My job is to figure out what they may have missed.
At the same time, sometimes the discovery confirms that the State has a strong case. That’s part of the process too. If the video is bad for my client, the witnesses are credible and the other evidence supports the allegation, pretending otherwise doesn’t help anybody. My client needs to understand that just as much as he needs to understand the weaknesses in the State’s case.
Clients sometimes believe there is going to be one document, one video or one mistake that makes everything go away. Occasionally there is evidence that dramatically changes a case. Most of the time, though, criminal defense doesn’t work through a single gotcha moment. You build the picture piece by piece.
What did my client say? What do the witnesses say? What does the video show? Does the physical evidence support those accounts? What did investigators do? What didn’t they do? Who didn’t they talk to? Where are the inconsistencies? And, ultimately, what can the State actually prove?
Those questions eventually allow me to have a much more meaningful conversation with my client about where we go from there. Sometimes the evidence gives us a reason to fight. Sometimes what is missing gives us something important to take back to the prosecutor. Sometimes our own investigation changes the way the case is viewed. And sometimes, after we’ve done all of that, we’re left with difficult evidence that we have to deal with honestly.
That’s why I don’t mind telling a client that we need to wait until I have more information. I’d rather tell somebody “I don’t know yet” than give him an answer based on half of the case.
By the time I’ve reviewed the discovery, I want to know what my client has admitted to, what the State can prove and what’s missing. Then the work becomes figuring out whether what’s missing changes the case.
Sometimes it gives us something to use at trial. Sometimes it gives us something to take to the prosecutor. Sometimes it doesn’t change the difficult reality of the evidence at all. But we can’t know that until we’ve done the work.
Discovery tells me the case the State has. My job is to figure out whether that’s the whole story.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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