A drunk driver terrorizes a quiet neighborhood in the middle of the night, almost killing an eight-year-old boy and causing a head-on collision. Before the case was submitted to the criminal court for arraignment, less than 12 hours after the Defendant was arrested, I began to develop a theme, theory, and trial strategy, in the event that this case would be tried.

As a prosecutor, you must thoroughly interview key witnesses, carefully scrutinize and examine police paperwork, collect evidence, and draft a criminal complaint within twenty-four hours of a defendant’s arrest. In doing so, it is also prudent for a prosecutor to view the process, even in its earliest stages, as multi-faceted: simply collecting the facts and drafting the complaint is not enough. A diligent prosecutor must also consider future trial strategy while simultaneously assessing the strengths and weaknesses of the case.

It is extremely important to remember that the main role of a prosecutor is to ascertain all information, both inculpatory and exculpatory, to assess the truth of a criminal complaint. In layman’s terms, information that will either prove or disprove a defendant’s guilt. It is not the role of a prosecutor to “win” at trial, but to provide “justice” and sometimes that means proving the defendant’s guilt or conceding the defendant’s innocence when appropriate. When the facts present themselves towards the defendant’s guilt, however, the prosecutor’s burden shifts to that of proving that guilt beyond a reasonable doubt at trial. The advocacy skills of the individual prosecutor will play a tremendous role in the outcome of that trial even before the defendant is arraigned.

What is trial strategy and how is it different from the facts of the case?

Facts are the information you gather after conducting an investigation which will help support the elements of a crime. In contrast, strategy is devising how exactly those facts should be thoughtfully and creatively presented. For example, in New York, to prove operating a motor vehicle while under the influence of alcohol or drugs (DWI or DWAI) you must prove:

  1. The defendant
  2. operated
  3. a motor vehicle
  4. while the ability to operate such motor vehicle
  5. is impaired by the consumption of alcohol.

This may be as simple as proving the police officer pulled over the defendant for swerving in and out of lanes and then observed that the operator of the vehicle exhibited signs of impairment such as bloodshot watery eyes, slurred speech, and the distinct odor of alcoholic beverages emanating from their breath.

Of course, a prosecutor can collect just enough evidence to prove the facts in order to draft the case, but once the speedy trial clock starts running dangerously high[1], you are going to wish you considered trial strategy when you drafted the case, as you may have overlooked key components to proving the case.

You may have a witness who can make out all of these elements, and particularly with DWIs, that witness is usually your arresting officer. However, after your conversations with the officer, if they seem like they are unfit to stand for a myriad of reasons such as: unlikability, Giglio[2] issues, poor recitation of the facts, etc., then you may want to consider calling OTHER witnesses who can attest to what happened. You should always be thinking about a backup: Who else can I get this information through? If I use this witness, what challenges may I face at trial? How can I better prepare this witness? How will my jury pool respond to this witness? You can have the greatest, strongest set of facts in the world, but if the source for those facts is a detriment to proving your case, it is better to address it immediately. That way it can also be remedied as soon as possible, in order to avoid issues later, when procedural rules may prevent you from doing so.

Police officers rarely take detailed notes and by the time the case gets to trial, your officer may have had over a thousand encounters and dozens of arrests since the arrest of your defendant. The officer’s memory will fade away naturally over time, and it may feel like your hopes of presenting a successful case went with it. But when there is a will, there’s a way, so it’s important to stay open-minded about other ways you can present your case. Sure, you can put your officer on the stand and have them repeat “I observed bloodshot, watery eyes, slurred speech, the defendant appeared unsteady on feet, and a strong smell of alcoholic beverages emanating from the defendant” and try to prove your case, but is it beyond a reasonable doubt? Will it convince a jury? You must delve deeper and elicit more information that will support those observations. How far away were you standing from the defendant when you first observed him? Were you wearing a mask? Was he? If he smelled like alcohol, what kind? Wine? Beer? Liquor? Was he standing or sitting? Did you observe him walking? Does he have any medical conditions? And so on. You need to be thinking about two things: What would you want to know if you were sitting on the jury? And what would you cross-examine this witness about if you were the defense attorney? That is how you begin to think strategically for trial. You must focus on all the intricacies of the evidence you will use. It is unwise to just haphazardly collect facts to prove the elements of the crime.

Often, we must rely on the investigation of the officer and unless that officer thinks like a diligent prosecutor at trial, you may be out of luck. If the police officer said he found a bottle of beer in the car then you need to start thinking – was there a picture of it? Were pictures taken of the crash scene? Was there surveillance footage of the crash? Any eyewitness? While some things may be too late to remedy by the time you speak to the officer, there is still an opportunity to collect additional information. Again, ask yourself those two questions and think outside of the box. In the case of the 505 horsepower 2-ton luxury SUV, I thought inside the box, the black box. Since it was a brand-new car, I thought maybe it had a crash recorder and it did, so I began collecting evidence I would need to apply for a search warrant. These new cars usually come with crash assistance from the manufacture, like OnStar, so I began collecting information for a subpoena. The defendant was brought to the hospital and then I started thinking, maybe they took blood, and knew I needed to immediately reach out the hospital to preserve any blood they extracted and prepare for a search warrant. That blood may contain evidence of the defendant’s intoxication, namely in the form of blood alcohol level.[3]

Now, the officer tells you that the Defendant crashed into several cars before finally colliding head-on with one last vehicle. You believe the officer but how can you prove this at trial? The officer wasn’t there. She didn’t see the defendant crash into anyone, and in fact, this information was conveyed to her from eyewitnesses. Sure, you may take the officer’s word as to what happened, but unless you can prove it at trial, then this information is without value. This is the perfect opportunity to remedy your evidentiary issues, either by seeking out these eyewitnesses or going through the rolodex of hearsay exceptions.[4] Luckily, there was an eyewitness willing to cooperate, who saw the first accident and then followed a trail of motor fluid all the way to the final accident several blocks away. Turns out, that the eyewitness saw an eight-year-old boy barely escape from between two parked cars that the Defendant barreled into at over 40 miles per hour. A split second earlier and the boy would have been crushed, almost certainly to death.

At this point you have now considered the evidence, spoken to the witnesses, gathered the facts and began to develop a theme of recklessness and intoxication – but how do you present that to a jury? Considering your jury pool and understanding their general likes and dislikes may even determine the outcome of an arrest before the case is written up. Maybe the jury pool in your jurisdiction is indifferent to police, and maybe if the only witness you have is a police officer with nothing to corroborate what they are saying, then the jury may look for an acquittal. Is that case worth the effort, time, and resources to prosecute to the fullest? Of course, in a perfect world with unlimited resources, an overstaffed office, and no time limits, then we could prosecute every crime and every arrest to the fullest extent, but that’s not reality. Sometimes the diligent prosecutor with knowledge of their jury pool and office policies will identify cases that are straightforward to prove but not easy to present successfully to their jury pool. Sometimes valid arrests get declined to prosecute because experience shows that similar cases, though viable, wouldn’t survive in trial. And therefore, it is better to quash the case then and there, instead of spending countless hours in collecting discovery and trial preparation.

Additionally, having a plan while doing intake will help naturally improve your direct and cross-examinations. Sometimes it is hard for us not to ask leading questions in a trial because we already know the answers. However, when you are intaking a case and absolutely know nothing, the questioning of your witness flows more naturally with an inquisitive tone which should then be mimicked in the court room. Same with crosses, because there is an opportunity to not only get out inculpatory evidence, but also clear out inconsistencies or confusion by asking your witness pointed questions. By following this strategy, your witnesses will be prepped for trial before the defendant is even arraigned.

Make it a point to work with your physical evidence during your questioning of the witness during intake. If you have a picture of beers found in the car ask the officer about the can in the exact manner you would at trial. What is this a picture of? When was it taken? Who took this picture? Is this a fair and accurate picture of the beers you observed that night? Excellent. Now the foundation is laid. Now is your chance to start asking about the picture. You can take it a step further and make a list of the exhibits as you go through them. Be sure to include a description, what witnesses you can get the evidence in through, and what evidentiary issues you may face.

Finally, the case is drafted and submitted to the court for filing and the defendant’s arraignment.[5] By that time, you should have developed a theory of the case, a theme to sell that theory, and a good idea of what witnesses and evidence will be presented to prove your case. You should submit that case feeling that you could go in front of a jury tomorrow and confidently advocate for justice. Taking the time to thoroughly intake your cases comprehensively in this manner is one of the biggest steps in winning at trial. The dedication and time you spend to this in the complaint room, at intake, can ONLY benefit you down the road.  

While this post was geared towards criminal prosecution, the practice should still apply to civil and criminal defense. As corny as it sounds, trials are won or lost based on the amount of preparation you are willing to endure, suffer in the complaint room and win in the court room.

[1] Criminal Procedure Law §30.30 outlines the statutory time limit in which the prosecution must state ready to try a case. Ranging from 15 days on violations to 6 months on felonies.

[2] Giglio v. United States, 405 U.S. 150 (1972): The term Giglio has been colloquial used to describe any impeachment material that may be used against a Government witness.

[3] Unfortunately no blood was taken by the hospital, so no blood alcohol level. What subsections do you believe could still be charged?

[4] Some common evidence admitted in criminal trials are 911 calls. What exceptions do you believe a 911 call could come into evidence under?

[5] Criminal Procedure Law §100.05 Commencement of action; in general.