What Is Criminal Defense Litigation?

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  • Written By: John Kinsellagh
  • Edited By: Michelle Arevalo
  • Last Modified Date: 05 September 2019
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In the area of criminal law, defense litigation refers to the various legal tactics employed by attorneys during the course of their representation of defendants. In the United States, those arrested and charged with a crime are afforded due process protections guaranteed by the Constitution. The nature and extent of legal action taken by a defense lawyer on behalf of his client, to a certain degree, will depend on whether the police and the prosecutor have scrupulously followed these constitutional procedural safeguards.

In some cases, a criminal attorney may present a legal argument that asserts that due process violations have occurred, this may result in dismissal of the charges against his client. For example, if there are sufficient facts to support a finding that the police lacked probable cause to arrest his client, a court may order that the charges be dropped. Similarly, if any evidence was unlawfully obtained, such as because police exceeded the permissible scope of a search warrant issued by a judge, a defendant’s attorney will argue that any evidence obtained should be excluded. In some circumstances, these defects may impede to the prosecution’s ability to try its case before a jury.


The standard of proof required for a criminal conviction is evidence that indicates the accused is guilty beyond a reasonable doubt. During trial, the principal strategy of defense litigation is to raise sufficient questions, in the minds of jurors, as to whether the prosecution has met this burden. A common defense litigation tactic is to attempt to undermine the credibility of the prosecution's witnesses, through rigorous cross-examination. In many instances, some of the key witnesses for the prosecution will have received inducements 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 untrustworthy, because of this benefit that they have received in exchange for their testimony.

If a jury convicts a defendant, defense litigation procedures would entail reviewing possible grounds for overturning the verdict. A criminal lawyer would review the trial transcript in order to learn if there are any legitimate grounds for an appeal. These may include errors committed by the trial judge, such as the allowing of certain evidence or testimony that was prejudicial to the defendant. An appellate court may order a new trial if it finds that the trial judge committed errors of law in conducting the proceedings, such that the defendant was precluded from receiving a fair trial.


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Post 4

@JimmyT - I understand your frustration with the legal system but matthewc23 is right. Without things like proving someone is guilty beyond a reasonable doubt a lot of mistakes made by law enforcement could not be fixed in the court of law.

As in the movie Shawshank Redemption a man is sentenced to life in prison because of total circumstantial evidence and assumption of guilt by everyone. This mirrors everyday life as juries will assume and judge based off of their assumptions. Because people must be proven guilty beyond a reasonable doubt this allows those people who have been wronged by circumstantial evidence to have their day in court and be able to be found not guilty, even though the circumstantial evidence may point towards it.

Post 3

@cardsfan27 - Many people make that argument that defense attorneys will do whatever they can to get their client off on a charge. In some instances this is true, but a lot of times these tactics have to be used in order to do what is right.

Say there is an instance where the police obviously believe that the wrong man or woman committed the crime but circumstantial evidence convinces they are guilty. This is where a defense attorney has to use these tactics to show not necessarily their client is innocent, but that they cannot be proven beyond a reasonable doubt that they are the person who committed the crime.

There are numerous instances where the wrong person was arrested

and wrongfully convicted due to circumstantial evidence and this is why the Constitution allows for defense attorney's to use this to their advantage.

The law has a lot of gray area and many times these tactics do a lot of good for people. Mistakes are always made and without clauses like these mistakes could never be fixed in the court of law.

Post 2

@JimmyT - I understand your post, but the major problem that people have with defense litigation is that it does show major flaws in the legal system.

The basic principal of any judicial system is to find the innocent innocent and the guilty guilty. Because of tactics used by defense litigation attorney's many guilty people are set free because they take liberties of what the law gives them.

Our laws in the United States are not perfect, the same goes for any nation, but they set the standard for which our society abides by. When someone breaks these laws and are put on trial if they find the right lawyer, they do not necessarily have to be found innocent to get off on a charge, they can simply be set free because the process was not followed the right way and this is what people have a problem with.

Post 1

Although most people see the tactic of defense litigation as a drain on the legal system and a drain in tax dollars, what must be understood is that it is always done in regards to the Constitution.

As the article states, all defense litigation must follow the three ways listed to defend a client. Although there are different ways the defense attorney can go about representing their client, if they do not follow one of these three methods they will not be taken seriously by the judge or jury.

There is a perception that defense attorney's will make any outlandish argument in order to get their client off on a charge. However, this is not the case. Each and every

case must be defended in certain ways and if they are not, then it will be wasting the time of the judge and jury, will not result in an acquittal, and become a quick trial.

Although mistakes are sometimes made and the guilty are set free, but so are the innocent, they are done so using these methods, and not just because the judicial system is a failure.

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