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When Should The Defense Put On A Case?

Aggressive Trial Attorney With a Reputation for Success

When you are charged with a crime, you are entitled to the presumption of innocence. What this means is that it is the prosecution's job to prove that you are guilty beyond and to the exclusion of every reasonable doubt.

This requires the finder of fact, be it a jury or a judge, to have an abiding conviction of guilt, meaning that the evidence only supports the conclusion that you are guilty and that no reasonable doubt as to your guilt exists.

The state is not required to prove you guilty beyond every doubt. Only every reasonable doubt.

This burden is exclusive to the state. The defense never has to prove their innocence. Ever. Under any circumstances.

In fact, there is no such thing as innocence in the context of criminal law. There is guilty and not guilty. A jury cannot legally find somebody innocent. They may find that the evidence is insufficient to meet the prosecution's burden of proof, in which case the appropriate legal verdict is not guilty.

Going hand-in-hand with this burden of proof is the defendant's constitutional right against self-incrimination. The 5th Amendment to the U.S. Constitution states that no person "shall be compelled in any criminal case to be a witness against himself." This right prevents an accused person from having to testify in trial. If a defendant does not testify in a criminal case, the jury is instructed that they cannot use the defendant's silence as evidence of guilt.

However, just because an accused person does not have to prove anything does not mean that the defense should not put on a case.

Juries are comprised of humans, and it is human nature to want to know what happened. In a case involving an affirmative defense, such as self-defense, it is wise to present an alternative theory of the case to the jury.

Your standard self-defense case involves an accusation of a violent crime. The state may charge a person with attempted murder, specifically alleging that the defendant shot somebody. The defendant may have witnesses who will testify that seconds prior to the shooting, the alleged victim approached the defendant and began to pull out a weapon. That testimony from those witnesses will support a self-defense claim.

Frankly, there is no formula for putting on a defense case. In my opinion, I do it whenever it is necessary to defend my client. End of story.

Aside from just the trial phase, a defense case can be utilized from the onset of a prosecution. For instance, if a person is charged with a crime and the case is going through the pre-file stage, I will often contact the intake prosecutor and provide them with the defense witness list right then and there. I will urge the prosecutor to subpoena my defense witnesses and speak to them prior to making a filing decision. In many instances, this can make the difference between felony charges being filed, felony charges being reduced to misdemeanors, or no felony charges being filed.

The key is, if you are accused of a crime and you believe that you can produce independent witnesses who could help your case, disclose them to your criminal defense attorney right away. Don't wait until a week before trial. I can tell you that it is much easier to get the state to dump a weak case during the pre-file stage than it is a week before trial.

So while it is your decision not to put on a defense case, sometimes it is the right decision to make. In a case with strong factual disputes, sometimes having the jury hear two accounts of the same story will make them question what really happened.

And since the jury must be firm in their decision-making, if they have doubts about your guilt and waver back and forth, they must find you not guilty. That is the law.

Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward. Eric Matheny has tried approximately 50 cases as both a prosecutor and defense attorney.