When people picture criminal defense, they often picture the trial: opening statements, cross-examination, objections, and closing arguments.
But some of the most important work in a criminal case can happen long before a jury is ever selected.
A criminal charge begins a process. The allegations in a complaint or indictment are not the entire case. Understanding what actually happened—and determining what the government can prove—often requires examining evidence from numerous sources.
Discovery Can Change the Case
Discovery is one of the foundations of criminal defense.
Depending on the case, it may include police reports, body-camera footage, recorded interviews, photographs, forensic reports, laboratory results, phone records, surveillance video, social-media evidence, medical records, and other materials.
Reviewing those materials carefully can reveal information that is not apparent from the charging documents. A witness’s recorded statement may differ from a later account. Video may provide context missing from a written report. Records may establish a timeline that conflicts with someone’s recollection. Forensic testing may have limitations that are not obvious from the conclusions in a laboratory report.
The Defense Investigation Should Not Necessarily End With the Police Investigation
Law enforcement investigates crimes, but the defense may need to conduct its own investigation.
That can mean interviewing witnesses, visiting locations, obtaining records, examining photographs or video, reconstructing timelines, and identifying evidence that may not have been collected during the original investigation.
Sometimes what was not investigated is important. Were additional witnesses present? Were there other cameras nearby? Were relevant records obtained? Was physical evidence preserved? Were alternative explanations adequately investigated? Those questions are often easier to answer when they are asked early.
Evidence Can Disappear
Timing can be critical.
Surveillance systems may automatically overwrite recordings. Businesses and government agencies may have document-retention policies. Electronic information can be deleted. Witnesses’ memories can change over time. Physical locations can change.
When potentially important evidence is identified, steps may need to be taken to preserve it before it disappears. That is one reason early investigation can matter so much.
Experts Can Change How Evidence Is Understood
Some criminal cases involve evidence that requires specialized knowledge.
Depending on the allegations, a defense attorney may need to consult an expert in areas such as DNA, firearms, toxicology, digital forensics, accident reconstruction, medicine, psychology, or bloodstain-pattern analysis.
An expert’s role is not simply to disagree with the prosecution. An expert may identify limitations in testing, examine whether accepted procedures were followed, explain what scientific evidence can and cannot establish, or identify additional testing that should be considered.
Sometimes an expert confirms that the evidence is strong. Other times, expert review exposes assumptions or limitations that significantly change how the evidence should be evaluated.
Constitutional Issues May Determine What Evidence the Jury Sees
Criminal defense also requires examining how evidence was obtained.
The Fourth Amendment protects against unreasonable searches and seizures. The Fifth and Sixth Amendments provide additional protections concerning interrogations and the right to counsel.
That can require examining whether police had a warrant, whether an exception to the warrant requirement applied, whether consent was actually voluntary, whether a traffic stop was lawfully extended, or whether statements were obtained in violation of constitutional protections.
When evidence was obtained unlawfully, the defense may seek suppression. A suppression hearing can sometimes affect the course of a prosecution before the jury ever hears the case.
Pretrial Motions Shape the Trial
Not every evidentiary dispute should wait until a witness is on the stand.
Pretrial motions can determine what evidence will be admitted, what will be excluded, what experts may testify about, and what legal issues the jury will ultimately be asked to decide. Those rulings can fundamentally change how both sides prepare.
Good trial preparation, then, isn’t something that begins a few weeks before jury selection. It develops throughout the case.
Criminal Defense Begins Before the Courtroom
Not every criminal case should go to trial. Some are resolved through negotiation. Some involve motions that substantially change the prosecution’s evidence. Others ultimately require a jury to determine what happened.
Thorough preparation helps a defendant and counsel evaluate those choices based on the evidence actually available—not simply the allegations in the charging documents. The objective is not to predict an outcome; no attorney can guarantee what will happen in a criminal case. The objective is to understand the evidence, identify the legal issues, investigate what needs to be investigated, preserve what needs to be preserved, and prepare the case so that informed decisions can be made.
Trials are important. But a trial is often the culmination of months—sometimes years—of work. By the time an attorney stands to deliver an opening statement, much of the foundation has already been built through discovery, investigation, expert consultation, legal research, and motion practice.
In criminal defense, what happens before trial can be every bit as important as what happens in the courtroom.
Frequently Asked Questions
1. Why is pretrial preparation so important in a criminal case?
Pretrial preparation allows the defense to examine the evidence, investigate the allegations, identify potential legal issues, consult experts when necessary, and determine what additional evidence should be obtained or preserved. What happens during this stage can significantly affect how the case ultimately proceeds.
2. What kind of evidence should a criminal defense attorney review?
The evidence depends on the case, but it may include police reports, body-camera footage, witness interviews, surveillance video, photographs, phone records, digital evidence, laboratory reports, medical records, and other forensic evidence. The defense may also identify evidence that was not collected during the original police investigation.
3. Why is it important to investigate a criminal case early?
Some evidence may not remain available indefinitely. Surveillance video can be overwritten, records may be destroyed according to retention policies, physical locations can change, and witnesses’ memories can fade. Identifying potentially important evidence early may provide an opportunity to preserve it.
4. Can evidence be excluded before a criminal trial?
Potentially. A defense attorney may file a motion to suppress evidence obtained in violation of constitutional protections or raise other pretrial challenges concerning admissibility. Whether evidence will be excluded depends on the particular facts and applicable law.
5. When might a defense attorney use an expert witness?
Experts may be useful when a case involves specialized subjects such as DNA, firearms, toxicology, digital forensics, medicine, psychology, accident reconstruction, or bloodstain-pattern analysis. An expert can help evaluate the methods used, explain the limitations of scientific evidence, and determine whether additional testing or investigation should be considered.
Travis Christopher Sayre, Esq.
Sayre Law Services, PLLC
Parkersburg, West Virginia
Serving Clients Throughout West Virginia
Sayre Law Services, PLLC is based in Parkersburg and represents individuals facing criminal charges throughout a growing area of West Virginia. I am now serving clients in Wood, Wirt, Pleasants, Ritchie, Doddridge, Gilmer, Calhoun, Roane, Jackson, Mason, Tyler, Wetzel, Marshall, Ohio, Harrison, Monongalia, Marion, Kanawha, Cabell, Putnam, and Taylor Counties. If you are facing a criminal charge in one of these counties, contact Sayre Law Services to discuss your case.
Legal Advertisement. This article is provided for general informational purposes and is not legal advice. Every criminal case is different, and the applicable law and available defenses depend upon the particular facts and circumstances.