LawHoc
Member
Frank said "What I'm getting at is that as a practical matter, except in an extraordinary case, the defense can't just sit back, let the evidence develop and at the end simply argue justification to the trier of fact based on whatever evidence was admitted."
You are not wrong, but what you are considering are the practical -- as distinguished from the legal -- aspects of trial strategy and tactics. Let me explain.
On the legal side, the defense considers the advantages and disadvantages the law and facts present. For example, the existence of witnesses, favorable and unfavorable; the existence of a special defense like Justification, and importantly, which side has the burden of proof regarding the defense, and what level of proof is required -- etc,etc.
On the practical side, the defense must consider practical, not legal, risks and rewards. Will the defendant come off as likable, unlikable? Will he have the ability to duel with the prosecutor during cross-examination, or will he destroy himself? Does he have something damaging in his background that, under the rules of evidence, can be exposed to the jury if he chooses to testify, but that can be precluded if he doesn't testify? Would "character" (reputation) witnesses be helpful, or turn out to be harmful? Etc., etc, etc.
Interviews of jurors after convictions show that often a defendant was winning, but then lost the winning case because he testified or presented unsuccessful witnesses, etc.
And there is yet more. Many criminal trial practitioners believe that when a defendant testifies or otherwise presents a case, a psychological (albeit not legal) change takes place -- that is, for the jury the burden of proof (psychologically, not legally) shifts from the full burden (and the very high level of "Proof Beyond a Reasonable Doubt") on the State, to a 50/50 apportionment of burden (at the lower level of "Preponderance of Evidence") between the contestants (like in a civil case).
In conclusion, a carefully thought out plan of defense of a criminal case may result in not putting on the defendant and/or additional evidence as a "defendant's case." To an observer such defense tactics may appear lazy, foolish, or otherwise harmful.
The process is more an art than a science.
(Imessed up the font/type here. Sorry.
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