I brainstorm my cases using the steps below. This is merely one way of brainstorming a case. There are as many different ways to brainstorm a case as there are lawyers who try them.
This blueprint should be viewed through the lens of a criminal defense attorney. I always start backwards by asking myself the question, “What facts must I establish during the course of the trial in order to make the kinds of arguments that I need to make at closing to support my client’s innocence?” Or, more specifically, “What facts do I need to establish during the course of the trial in order to advance my defense and get an acquittal?”
Brainstorming requires a lot of “free association,” which can be torturous for those who are perfectionists and prefer structure. It’s like being afraid of heights but finding the courage to bungie jump off of the steepest cliff. In other words, you have to “let go” and give yourself permission to think outside of the box. There is no such thing as a “bad idea.” Of course, that does not mean that every thought that comes out of the deepest recesses of your mind is going to be brilliant, much less that it will be a “keeper.” Like minnows swimming upstream, only a few ideas will actually survive. But the only way to realize these ideas is by allowing your imagination to run wild and not to self-edit or censor yourself.
I. Step 1: List the date and time of the incident.
II. Step 2: Make a list of witnesses – distinguishing whether they are States’ witness or defense witnesses. Further break them down according to whether they are lay witnesses are members of law enforcement.
III. Step 3: Make a list of the names of any witness or victim who gave a statement. Indicate how the statement was made, when it was made, and how long it lasted.
a. Was the statement made to a police officer at the scene? If so, does it appear as a summary in the narrative of the officer’s report?
b. Was the statement made to a detective at the police station?
c. If the suspect was the one being questioned, was he read his Miranda warnings before being questioned at the scene or at the police station?
d. If taken at the police station, was the statement video recorded or was it transcribed by a stenographer?
e. On what date and at what time was the statement made? How much time elapsed between the incident and the taking of the statement?
f. How long did the questioning last? If it was typed up by a stenographer in real time at the police station, how long did it last? Twenty minutes? One hour? What was the start time? What was the end time? How many pages does the transcript consist of?
g. Was an interpreter needed? If so, was one obtained?
IV. Step 4: Create a three-column chart called “Bad facts.” Label the far left column, “Bad facts.” In that column, list all of the bad facts, no matter how obvious they might be. Do not worry about what is admissible and what is not admissible when making the chart. Just try to list everything you can think of. Label the middle column, “Source of bad fact.” Cite the source for each bad fact. For example, if it was a police officer’s report, write the name of the police officer and the page on which it can be found. If it was testimony given at a grand jury hearing, reference “GJ Transcript” and the page on which it can be found. The “Bad facts” can be a work in progress through the case. Sample “Bad facts” include: (1) Defendant has criminal record; (2) Defendant fled the scene; (3) Defendant admitted crime to witness; (4) Defendant assaulted victim in the past; (5) Defendant was arrested in clothing that matches the description provided by an eye witness; (6) No coercion on behalf of police during defendant’s interrogation.
V. Step 5: Create a three-column chart called “Good facts.” Label the far left column, “Good facts.” In that column, list all of the good facts. If few exist, don’t be afraid to reach. For example, “John did not make an incriminating statement.” Name the middle column, “Source of good fact.” Cite the source for each good fact. Do not worry about what is admissible and what is not admissible when making the chart. Just try to list everything you can think of. The “Good facts” can be a work in progress throughout the case. Sample “Good facts” include: (1) No fingerprints on gun; (2) Defendant consented to a DNA test; (3) No DNA found; (4) Law enforcement did not record the defendant’s statement; (5) Defendant had no motive; (6) It was dark out.
VI. Step 6: State your defense, as shallow as it might be. For example, “Mistaken identification.”
VII. Step 7: Return to your “Bad facts” chart. Label the far right column, “Neutralizing bad facts.” For each bad fact, present the State’s argument – i.e., how you expect the prosecutor to use that damaging fact in closing argument to “smoke” your client (i.e., in support of guilt). Directly underneath it, provide a rebuttal. Are there any pre-trial motions you should file? Is there any supplemental voir dire you would like to submit to the court? Your goal is that by the time you do your summation, you either have a good explanation for every bad fact or you have suppressed it or kept it out of evidence.
VIII. Step 8: Return to your “Good facts” chart. Label the far right column, “Defense’s argument.” For each good fact, write out your argument – i.e., how that fact supports a vital point that you want to make during your closing argument in support of John’s innocence. Are there any pre-trial motions you should file? Is there any supplemental voir dire you would like to submit to the court? Your goal is to ensure that every good fact has been presented during the course of trial so that you have a legal basis for making the kind of arguments that are consistent with innocence at closing.
IX. Step 9: Look at the good facts and bad facts and determine if there are any pre-trial motions you should file. List of potential pre-trial motions:
a. Dismiss the indictment or dismiss counts of the indictment;
b. Suppress physical evidence;
c. Suppress statements;
d. Suppress identification;
e. Prevent the State from introducing 404(b) evidence;
f. Sands/Brunson hearing
g. Prevent irrelevant or unduly prejudicial evidence (N.J.R.E. 403)
h. Admissibility of expert testimony or scientific evidence;
i. Prevent hearsay;
j. Admissibility of evidence of third party guilt;
k. Identity of confidential informant;
l. Disclosure of police surveillance post;
m. Admissibility of victim’s prior sexual conduct (Rape Shield Exception);
n. A Driver hearing (admissibility of tape recordings);
o. Prevent Fresh Complaint Evidence;
p. Prevent Tender Years Hearsay Evidence (N.J.R.E. 803(c)(27));
q. Prevent “excited utterance”;
r. A Michaels hearing (coaching child sexual abuse witnesses);
s. Severance of co-defendants (Bruton);
t. Severance of counts of the indictment;
u. Prevent the State from relying on lab reports;
v. Redact inadmissible portions of a tape recording of the defendant’s statement.
X. Step 10: Examine the good facts and the bad facts and determine if there is any supplemental voir dire that you would like to submit to the court. If so, submit supplemental voir dire questions regarding these areas in a supplemental voir dire brief. Also, for voir dire, I recommend constructing a chart with the seating positions of each of the jurors. The court will usually provide one. Write the juror’s name and the information about that juror inside the rectangle that corresponds to that juror on the chart. Insert a “mark” for how you feel about that juror. For example, you might draw an upward arrow for jurors you like, a downward arrow for jurors you don’t like, and a straight line or no mark at all for jurors you feel neutral about. Have a small pad of sticky paper available so you can create a clean space in your chart over any jurors that were struck. An alternative is to write all of the information on a pad but that can get confusing. Be sure to keep track of how many peremptory challenges you have used and how many the prosecutor has used.
XI. Step 11: What are the underlying dominant emotions that you expect the jury to feel after hearing the prosecutor’s opening statement? For example, sympathy for the victim. Disgust for your client.
XII. Step 12: What are some things that law enforcement should have done but didn’t? Did they neglect to take fingerprints? Did they fail to take a statement from a key witness? Did they forget to cordon off the crime scene with yellow tape to protect it from contamination and to prevent nosy people from traipsing through?
XIII. Step 13: What questions is the jury likely to ask after hearing the State’s case? For example, “If Bill is truly innocent, why would he have confessed to a crime that he didn’t commit?” This question will need to be answered directly during closing argument.
XIV. Step 14: Write out the theory of your defense in a short sentence or two. Example when the pivotal question is, “Why would an innocent man confess to committing a crime that he didn’t do?” “John took responsibility for a bank robbery that he didn’t commit in order to protect the love of his life from going to prison. If he is guilty of anything, he is guilty of loving Vanessa too much and of using poor judgment.”
XV. Step 15: Come up with some themes: For a false confession case, “He was as desperate as a bear who chewed off his paw after getting caught in a hunter’s trap.” Trilogies are great. For a battered women’s case: “Battered, beaten, and abused.”
XVI. Step 16: Tie it together and start writing out your closing argument.
a. Why would an innocent man admit to committing a crime that he didn’t do?
i. Why would a bear chew off his paw when he is in a helpless situation?
1. Papa bear and his cub were out foraging for berries. Papa bear’s paw becomes ensnared in a hunter’s trap
2. The cub doesn’t realize that his father is in trouble and full of curiosity, drifts away from his father
3. A hungry lion, perched on the top of a cliff, sees the wondering cub
4. Seizing the opportunity to catch the cub off guard and in a vulnerable state, the lion takes off like the speed of light from his perch
5. The papa bear sees the lion out of the corner of his eye racing towards his cub
6. He knew all too well what was going to happen. And he knew what he had to do. With no time to spare, the father bear chewed off his trapped paw
7. Limping, the bear rushed to his cub as fast as he could. And it wasn’t a minute too soon. The lion had already closed in and was eying his prey. Summoning up all of the strength that he had, the father bear stood between his cub and the lion, stood up on his hind legs and raised his paws up in the air, showing his menacing claws.
8. The lion stopped dead in his tracks, turned around, and retreated like a hyena with its tail between its legs back into the forest.
ii. Just like the father bear sacrificed his paw to save his cub from the lion, John sacrificed his liberty to protect the love of his life from going to prison.
iii. As John testified, the detectives told him that Jessica had been arrested and charged with being in possession of heroin.
iv. On the way to the police station, when John was alone in the car with Detective Jacobs, Detective Jacobs made John a promise. If John confessed to robbing the bank, then Detective Jacobs would talk to the prosecutor and see to it that Jessica did not go to jail.
v. Detective Jacobs exploited a vulnerability of John – his unconditional love for Jessica. He knew that John was in a relationship with Jessica. And he dangled Jennifer’s fate in front of him like a hunter dangling a piece of raw meet in front of a lion.
vi. Why did John admit to committing a crime that he didn’t do? To protect the love of his life from going to jail. He couldn’t bear the thought of seeing someone as naïve and innocent as her rotting away in a cold, dank jail cell where her safety would be at risk every day. You may not have believed what John believed or done what he did. But it doesn’t make him a criminal for exercising poor judgment. It only makes him a criminal if he violates the law.