“Know your enemy…”
Most of us have heard the phrase, but it’s only one-half of the equation: “Know the enemy and know yourself.”
How can we apply this lesson from Sun Tzu’s Art of War to the practice of criminal defense? If we take our duty to defend our clients seriously, we must 1) know our enemy (the prosecution) and their plans, 2) know our own strengths and weaknesses, and 3) know (and choose, whenever possible) the ground on which we will fight.
Let’s take a brief look at passages from the Art of War that explain how and why we must know our enemy and know ourselves, and how it applies to criminal defense.
Know Your Enemy and Know Yourself
If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.
The lesson for criminal defense, I think, is to intentionally apply the principle of “know the enemy and know yourself.”
We have some idea, from the beginning of any case, as to what the charges will be, what the state will have to prove, the likelihood of dismissal, and the ease or difficulty of a jury trial if it comes to that.
We will usually know, from the incomplete discovery sent from the prosecutor’s office, the most important evidence that will be presented, just as we will usually know, from our initial interview with our client, what our likely defenses will be.
Some attorneys will decide whether their client should accept a plea offer or risk a trial based only on this preliminary information and not much else. But is that enough? What else can you do to gather foreknowledge of the battle to come (or foreknowledge sufficient to advise your client to avoid that battle at all costs)?
Know Your Enemy
If we know that our own men are in a condition to attack, but are unaware that the enemy is not open to attack, we have gone only halfway towards victory.
If we focus on our case, the elements of the charges, the potential defenses, the legal issues that may arise in our case, our ability to present our client’s story to a jury, and our likelihood of persuading a judge to grant our motions, but do not intentionally seek out information on our prosecutor and their perspective on the case, we are only halfway there.
What does it mean to “know your enemy” when a prosecutor is threatening to convict our client and put them in prison?
The Prosecutor
You must know the personality, habits, and practices of the prosecutor who is assigned to your case:
- Are they likely to try your case, or will they accept a reason to dismiss as a way out of a time-consuming and painful trial?
- Do they have experience trying cases? Do they have experience trying cases like this one? Will a more experienced prosecutor be assisting them in preparing for trial and trying the case?
- Do they make decisions based solely on an alleged victim’s wishes, or do they make decisions based on the facts and the law while taking the alleged victim’s input into consideration?
- Are they persuasive speakers who will endear themselves to jurors, or will they bore the jurors to death with meaningless detail? Are they storytellers who can grab jurors’ attention and hearts?
- Are they effective cross-examiners who can lead a hostile witness to tell a compelling story, or will they repeat your direct examination questions allowing the witness to re-tell your story to the jurors?
- Given the opportunity, will they mislead the jurors? If so, will you be able to show the jurors how and why the prosecutor has lied to them, destroying their credibility?
How do you discover who your prosecutor is and what their abilities are?
- Through experience – if you’ve tried even one case against a prosecutor, you will know their habits and abilities (as they will know yours).
- Talk to other defense attorneys who have tried cases with them, judges who have presided over their trials, and other prosecutors who work with them.
- Find out cases that they have tried that have gone up on appeal, discover who the defense attorneys or appellate attorneys were, and collect transcripts of their previous trials – most attorneys will repeat the same patterns from one trial to the next, and you will be able to prepare counters for the stories they tell or the arguments they make in every case.
Is it worthwhile to hunt down transcripts from your prosecutor’s previous trials? Sometimes…
An attorney I used to work with pulled multiple transcripts from prior trials with the same prosecutor in a murder case and found that she gave the same closing argument in every trial – the arguments were almost verbatim.
It was easily adapted to the defense, so, at trial, the attorney gave the prosecutor’s closing argument first – leaving her rattled and scrambling to not sound like she was just copying the defense attorney’s closing…
Discovery
Every defense attorney will, as a matter of course, send a discovery request to the prosecutor in each new case that they take on.
The prosecutor will then send a response that contains incident reports, witness statements (sometimes), and possibly a dashcam video from a responding officer. And not much else, unless it is damning evidence that they know they will introduce at trial…
In my opinion, it’s malpractice to accept that initial response at face value – you will almost always need to file a first, second, third, or subsequent Supplemental Discovery Request that lists the specific things that you know the prosecutor is withholding, and then a Motion to Compel the production of the information that you have requested.
How do you know what they are hiding? From your independent investigation, which may include information from:
- Your client,
- Your client’s friends or family,
- Other witnesses to the events in question,
- Police officers involved with the case,
- Your investigator,
- Your prosecutor or other prosecutors in their office, and
- Experience from having defended similar cases in the past.
The information you are seeking varies from case to case, but could include:
- Videos from patrol cars (all patrol cars on the scene),
- Bodycam recordings from all officers on scene,
- Video or audio recordings of witness, alleged victim, or defendant interviews (do not settle for a police officer’s “summary” of the interview – you need to hear it for yourself),
- Video or audio recordings of a “drug sting,”
- Cellphone records that could include extracted data from a phone or a cell tower “dump,”
- Unredacted versions of incident reports and witness statements,
- The criminal histories of key prosecution witnesses,
- A prosecution witness’s motivation for testifying (CI, paid informant, pending charges, dismissed charges?),
- The information that led police to seek a search warrant and any “oral” supplemental testimony given to a magistrate to support probable cause,
- A police officer’s prior allegations of lying under oath, misconduct in office, or excessive force,
- Cell phone records of police officers (when it is relevant to your case), or
- Any information that you are entitled to based on the facts of your case and that the prosecution has not provided to you.
Ask yourself, what would a prosecutor not want to turn over in this case if it existed? And ask for that.
Know Yourself
If we know that the enemy is open to attack, but are unaware that our own men are not in a condition to attack, we have gone only halfway towards victory.
If you know that the prosecutor has a weak case, or that they are not the most effective trial attorney, you are only halfway there – if you go to trial without intentionally examining yourself, your client, and your own case, you may win or you may lose.
First, secure your defenses:
- Investigate the facts of your case,
- Have an investigator talk to all potential witnesses,
- Identify all possible legal issues that may arise at trial or that can be raised pretrial,
- Research the legal issues, and draft motions in limine or briefs that you can rely on to argue motions or objections during trial or hearings,
- Prepare your witnesses for testimony at trial, so they understand how cross-examination works and how to answer while speaking to the jurors, not the attorney (police officers are trained on this extensively and have experience – your witnesses should be as well prepared),
- Prepare your client for testimony at trial, even if you do not think they will testify,
- Know your client’s and your witness’s ability to testify effectively, to connect with jurors, and to withstand cross-examination,
- Prepare yourself for arguments on motions and objections, opening statement, cross -examinations, direct examinations, and closing argument,
- Prepare your staff for their roles in a potential trial – will you have a runner, someone on standby to pull cases and do legal research on the fly, someone to prepare information on potential jurors for jury selection, a second chair who will take on specific witnesses, someone who will be in charge of organizing and preparing exhibits, someone who will be responsible for making sure the witnesses are present and ready to be called to the stand, or someone who will be in charge of organizing documents, motions, briefs, and other paperwork you may need quickly on the fly?
When you are ready, and you know yourself, your client, your case, and your enemy, then you wait.
The good fighters of old first put themselves beyond the possibility of defeat, and then waited for an opportunity of defeating the enemy.
If you know yourself, and your position is weak, and you know your enemy, and their position is strong, you wait until their position is made weaker. Work out a resolution if possible. If a resolution cannot be reached short of trial, you wait because they might want to avoid a trial. If their key witness is ready and available to testify, you wait because that witness may disappear, get arrested, or refuse to testify.
If you know yourself, and your position is strong, and you know your enemy, and their position is weak, attack. File your motions to suppress evidence and don’t wait until the eve of trial, file every motion that you can that could weaken their position further, file a motion for a speedy trial, and demand a hearing on your motions.
To secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.
When your position is weak, don’t underestimate the prosecutor’s ability to lose the case for you. Even in what seems like a hopeless battle, where you are forced onto dangerous ground and forced to fight, even a competent prosecutor may lose credibility with the jury or make mistakes that they cannot recover from during trial.
If we know that the enemy is open to attack, and also know that our men are in a condition to attack, but are unaware that the nature of the ground makes fighting impracticable, we have still gone only halfway towards victory.
Finally, even when you know yourself and you know your enemy, you must know the ground on which you will fight.
Who will the judge be in the case? Can you get your case continued when you know the prosecutor is calling your case in front of a hostile judge who will consistently rule against you? Do you know that the presiding judge will listen to the law and make fair calls on your motions and objections?
If your case has received excessive pretrial publicity, can you get a change of venue based on questions that you have submitted to the jurors? What questions would bring out their foreknowledge of the case and their potential biases?
Criminal Defense Lawyers in Columbia, SC and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
