Evaluating defendant's version of facts

Evaluating defendant's version of facts

Central to a criminal defense is an understanding of the defendant's position. This understanding goes beyond the ability to repeat what the client has said, and includes reasonable predictions about how it will be received by the trier of fact. Therefore, it is important to view the client with an eye towards evaluating his or her credibility as well as anticipating the psychological reactions people are likely to have when confronted with the personality of the defendant.

The same techniques that assist the attorney in establishing a rapport with the client will assist the attorney in evaluating the client's version of the facts. If the client resists eye-contact it may suggest that he or she is not being entirely honest. Counsel must observe the client as fully as possible, noting his or her demeanor, gestures, habits of speech, and similar non-verbal cues.FN82 In addition, it is important to fully understand the basis for the client's perceptions. Where the client makes statements about the operation of a computer system, it is important to know whether these are based on his or her own knowledge of the workings of the system, manuals or other documentation that he or she read to learn about the system, or only rumors that might prove to be far from the truth. Without undermining the relationship of trust that should be developing between the client and the attorney, the attorney will be wise to test some part of the client's explanation of events. This testing should only begin after the attorney has gotten a full description of the events according to the client. Care must be taken however, because testing, which amounts to premature cross-examination, may be misunderstood by the defendant as suggesting that the attorney does not trust him or her. In such a case, the defendant might become quite guarded in subsequent replies. Once the basic facts as the defendant sees them have been established, the attorney can explicitly introduce cross-examination by explaining that should the case go to trial the defendant's version of the facts will be subjected to fierce cross-examination by the prosecution if the defendant testifies. The attorney's cross-examination can be likened to a test-run, to see how the client reacts. In some instances, it is more appropriate to give this explanation after the cross-examination-type questioning has been concluded.