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How Can I “Win” My Criminal Case? A Discussion of Pre-Trial Evidentiary Issues – Witnesses

Often you may hear of a criminal defendant getting his or her case dismissed, whether it be in “real life,” on the news, or in a television show or movie. You may wonder why it seems like some individuals accused of crimes “get off” when it seems like the odds are stacked against them while others, under seemingly similar circumstances, negotiate for a plea agreement that may include being incarcerated or go to a jury trial and ultimately get convicted. While there may be a variety of reasons for the differences in these hypothetical scenarios, one possible answer is the changing landscape of the evidence for or against a criminal defendant from the time that the criminal defendant is charged with a crime to the time leading up to trial. Effective criminal lawyers can really shine during this period, and this blog series examines several scenarios that may play out during the time between a criminal case being filed and trial that may result in a favorable outcome for a defendant in a criminal case. This post specifically focuses on witnesses, and a second part follows involving statements and physical evidence.

Often times, the primary evidence against a criminal defendant comes from eyewitnesses who were present during the alleged commission of a crime. Such witnesses may include the victim and/or victims of the alleged crime. Law enforcement officers, in performing their duties in investigating alleged criminal conduct, interview these witnesses and/or take statements from them. A law enforcement officer may then sign an affidavit of probable cause in support of the charges that are brought against the criminal defendant. This probable cause affidavit is the “support” for the charges that the prosecutor is bringing against the criminal defendant, and the probable cause affidavits often contain quotes or summaries of the information that the officer or officers obtained from interviewing the witnesses and victim(s).

After the criminal charges are filed, defense attorneys have the opportunity to take the depositions of witnesses. Depositions are where attorneys get to ask questions of witnesses while the witnesses are under oath in order to obtain more information about the case. Often, during these depositions, skilled attorneys may be able to develop a record of additional facts that may show that all of the elements necessary for a conviction cannot be met or may be very difficult to prove. Let’s look at an example to examine this further. Suppose two business partners, A and B, get into an argument, and as the argument escalates, A shoves B, causing him to fall. B retreats to his office and calls his local law enforcement agency, and when law enforcement officers arrive, B tells them that A “battered” him or her. Consequently, the local prosecutor files felony charges of “battery” against A, and the law enforcement officer submits a probable cause affidavit indicating that B said that A “battered” him or her, and A gets charged with a felony. One way that a battery becomes a felony in Indiana is if it results in “moderate bodily injury” to the victim. So, if B is deposed and testimony is elicited by a defense attorney that B really wasn’t hurt, then A’s attorney has helped to negate one of the elements needed for a conviction as to the felony charge. This may lead to a prosecutor dismissing the charge or may lead to favorable plea negotiation terms for a criminal defendant.

Another relatively common scenario that arises with witnesses is one who is reticent to become involved in criminal proceedings or recants a portion of what they told law enforcement officers originally. Let’s again imagine the “battery” scenario between A and B again, but this time, there is another witness, C, who is an out of town client of A and B. C obviously was present for the incident and gave a statement to law enforcement that supported the charges, but when it comes time to travel back to Indiana for a criminal deposition, C does not want to cooperate – he or she does not want to travel, does not want to become involved, and does not want to speak with the prosecution. Meanwhile, B, in his or her deposition, begins to testify differently about the information that he or she originally gave to the investigating officers. This may be for a variety of reasons, including misremembering facts, or possibly, maybe B is much calmer and able to process thoughts better in a deposition as opposed to immediately after an altercation with a business partner. While we at Ciyou & Dixon are certainly not advocating in any way that someone exercise undue influence over a potential witness, these are scenarios that often occur where witnesses’ testimony or willingness to help changes, and sometimes, this results in a more favorable outcome for a criminal defendant after a defense attorney helps bring this to the prosecuting attorney’s attention.

Last, defense attorneys may be able to impeach a witness or call into question that witnesses’ credibility early on in a criminal case in order to achieve a favorable outcome. While law enforcement officers obtain information that they need in investigating criminal matters, sometimes it is beyond their duty to ask every single question that may surround an alleged criminal incident. Defense counsel at a deposition may be able to question B and learn that on the day of the “battery” incident, B had an excessive amount of alcohol prior to the incident and thus could not recall the incident well, that B had been convicted of fraud or other crimes of dishonesty before, or that B had an ulterior motive of ousting A from the partnership. Such testimony would severely undermine the prosecution’s ability to succeed in a criminal case, and this could result in a favorable outcome for a defendant.

These are just a few of the scenarios that skilled defense counsel can work with to assist criminal defendants in obtaining the best possible outcome to criminal charges filed against them based on close and careful examination of the evidence. This blog is written by attorneys at Ciyou & Dixon, P.C. who handle the full spectrum of criminal cases throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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