Litigation defense in criminal law involves legal tactics used by attorneys to represent defendants. Due process protections are guaranteed by the Constitution, and defense attorneys may argue due process violations to have charges dismissed. During trial, defense attorneys aim to raise questions about the prosecution’s burden of proof and undermine the credibility of prosecution witnesses. If convicted, defense attorneys may review possible grounds for appeal, including mistakes made by the trial judge.
In the context of criminal law, litigation defense refers to the various legal tactics employed by attorneys in the course of their representation of defendants. In the United States, those arrested and charged with a crime are offered the due process protections guaranteed by the Constitution. The nature and extent of the legal action brought by a defense attorney on behalf of his client will, to some extent, depend on whether the police and prosecutors have scrupulously followed these constitutional procedural safeguards.
In some cases, a criminal lawyer may present a legal argument that there have been due process violations, which may result in the charges against his or her client being dismissed. For example, if there are sufficient facts to support a conclusion that the police have no probable cause to arrest their client, a court may order the charges dropped. Similarly, if evidence was obtained illegally, such as because the police exceeded the allowable scope of a judge-issued search warrant, the defendant’s attorney will argue that any evidence obtained should be barred. In some circumstances, these flaws can hinder the ability of the prosecution to try their case before a jury.
The standard of proof required for a criminal conviction is evidence that indicates the defendant is guilty beyond a reasonable doubt. During the trial, the principal defense litigation strategy is to raise sufficient questions, in the minds of the jurors, about whether the prosecution has satisfied this burden. A common defense litigation tactic is to attempt to undermine the credibility of prosecution witnesses, through rigorous cross-examination. In many cases, some of the key prosecution witnesses will have received incentives to testify in the form of a reduced sentence or immunity from prosecution. A defendant’s attorney will attempt to portray the testimony of such witnesses as unreliable and unreliable, due to this benefit they received in exchange for their testimony.
If a jury convicts a defendant, the defense litigation procedures will involve reviewing possible grounds for overturning the verdict. A criminal lawyer would review the trial transcript to learn if there are legitimate grounds for an appeal. These can include mistakes made by the trial judge, such as authorizing certain evidence or testimony that was prejudicial to the defendant. An appeals court may order a retrial if it finds that the trial judge erred in law in the conduct of the proceedings, such that the defendant’s right to a fair trial was denied.
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