The first thing every New Jersey criminal defense attorney must think about before he presents his case to the Jury is how will he present the defendant’s theory of the case. This is not a simple question and requires must thought and preparation.
The first thing that the criminal defense attorney must do is known each and every fact of the case. Also, the attorney must spend a considerable amount of time with the client to understand facts which are not revealed in discovery and only the client knows about. Remember, the client does not know which facts are important, therefore, you must stress to the client that every fact know to the client, good of bad, must be revealed to the attorney.
It is well settled both in federal and New Jersey state law that the defendant has the absolute right to present his side of the story to the jury, or otherwise known as his theory of the case. In Washington v. Texas, 388 U.S. 14 (1967), our United States Supreme Court held that under the Sixth Amendment to the United States constitution, the defendant has the sixth amendment right to compulsory process to have witnesses testify on the defendant’s behalf. See also, Davis v. Alaska, 415 U.S. 308 (1974). Further, the defense has the right to present a meaningful defense. Holmes v. S.C., 126 S.CT. 1727 (2006) The right of the defense to present its theory of the case is so strong, even to the point of allowing the defense the opportunity to present hearsay, i.e., declaration against interests, “I killed the cop”, Chambers v. Mississippi, 410 U.S. 284 (1973)
The Defendant is denied a fair trial if he cannot present his theory of the case.
In essence there are basically three types of defenses.
1. She did not do it.
2. She did it but government cannot prove it.
3. She did something but what she did is not a crime.
In assessing the Government’s or State case the question must be asked. What is the Government Ignoring?
Points to Remember:
1. What has the government neglected?
2. What has the government ignored?
3. What has the government refuse to recognize?
4. Which are also known as negative evidence and an acceptable means of disproving a criminal case?
5. Negative evidence is important.
Accordingly the defendant has the absolute right to present our defense, and the Government cannot prevent or tell us how to proceed. Cast shadows on innocence’s.
6. If the Government attempts to prove intent by circumstantial evidence, why isn’t the defense entitled to show that circumstantial evidence which does not show intent?
7. Absence of evidence when it should be there.
8. Deconstructing evidence what the government wants to show-prove.
9. What are they not saying?
10. What are they ignoring?
11. What is lacking?
12. Idea of deconstruction.
13. Put it into proper form for the jury to understand.
14. Use demonstrative evidence to show the negative evidence.
15. What about the government’s theory doesn’t make sense?
16. Have they used any resources to find the truth?
17. To find this negative evidence?
18. Evidence that they don’t have, which would prove that he is guilty of the crime?
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