The Texas Tornado, by way of the two Justices (Blonde and Western) writes about (what he might as well trademark) the NLS (Nasty Little Surprise©) strategy and tactic.
The question is simply
why a criminal defense lawyer would not share exculpatory information before trial with the Government.
All three of them hit on the crux of the matter – trust. Trust in the prosecutor assigned to the case and trust in yourself. You want to reveal this exculpatory information to a prosecutor whom you know will not dismiss it outwardly and then try to circumvent it surreptitiously. Thankfully, in my experience at least, such prosecutors are few and far between. It is a very real possibility, however, and one that should be weighed.
Then you have to trust yourself. Do you trust yourself to take the case to trial and present that exculpatory information in the best possible way? Only you can answer that question.
The Tornado then goes on to separate the NLS’ into two categories: the bombshells and the not-bombshells. Both should never be revealed to an untrustworthy prosecutor, he says, and the second category NLS need not be revealed if it won’t make much of a difference in the pre-trial stage.
I don’t know how they do it in Texas or the State of Justices, but here in CT, most pre-trials in Part A are in judges’ chambers, where both sides sit down, talk about the case, give the judge some information (without revealing all the cards, of course) and hash out a number. If the number is too high or too low for one side, you go back two weeks later and try it again (roughly speaking). So if there is some exculpatory information, you might be able to get a Judge on your side and convince the prosecutor to dismiss or nolle the charges. Won’t happen every time, but worth considering.
So, The Tornado argues, echoing Blondie, that you might want to set up the NLS for use at trial – a Perry Mason moment, if you will.
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk.
If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.
When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?
I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.
(Now, you all probably know that I hate generalizations, so I just want to add that every case is different and every circumstance is different and what I would do would probably depend on the individual case, but as a general rule, I’d rather use the exulpatory information pre-trial.)
Fellow practitioners, what do you think?
And finally, just because it’s been so damn long since I’ve done this: