TRIAL STRATEGIES FOR FEDERAL WHITE COLLAR CRIMINAL CASES
Printer / PDF Version: Trial Strategies For Federal White Collar Criminal Cases
In the FCDC article on The Federal Legal Process, I reviewed some of the Risks of going to trial on the Federal Criminal level, and the reasons to proceed with a Trial. In this Article I will go more in depth on each of these while also summarizing numerous Trial Strategies. For much more detail, discussion and analysis, please consult the FCDC Legal Book: The Federal White Collar Criminal Defense Guide.
Reasons to Pursue Trial
ü Plea agreement terms are prohibitive. Your Attorney believes the Plea is not in your best interests.
ü Trial Risk Analysis is favorable
ü Family & Friends support your decision
ü Cases of Government misconduct, illegal / inadmissible evidence and procedural mistakes which add up substantially
ü Cooperation in not in your best interest
Note: I did not include a Defendant’s innocence as a reason to pursue trial. Due to the extensive nature of the Federal Government’s investigation, whether or not you as a Defendant are innocent really becomes a mute point. Especially in complicated White Collar Cases.
Setting the Tone: Pre-Trial Motions
Challenging the quality of the government’s case is a must from the outset, well before Trial Begins. Examples of Pre-Trial Motions are:
ü Motion to Dismiss
ü Motion to Sever
ü Motion to Suppress Evidence
ü Motion for Change of Venue
ü Motion for Continuance or Adjournment
ü Motion to Recues or Disqualify a Judge
ü Motion in Limine / Protective Order
ü Motion for Discovery
Trial Strategy & Tips
Provided is an Overview of numerous Trial Strategies & Tips; however, for complete details, please consult FCDC’s The Federal White Collar Criminal Defense Guide.
Ø Discovery
ü Don’t let the Government delay and drag their feet.
ü Upon receipt, quickly scan and review the Discovery contents to identify obvious omissions or corrupted documents.
ü Organize the Discovery: Chronologically, by Subject Matter, etc. Divide among Defense Team Members with expertise in its content.
· Each assigned Defense Team Member is to produce an Analysis & Summary to be aggregated into Main Case Discovery Analysis / Summary for the Lead Attorneys.
· Be sure to identify Mitigating Factors as the review progresses.
ü Attack the Discovery: Challenge anything that is amiss or questionable. Put the pressure back on the Feds.
· Submit Pre-Trial Discovery Motions to request and challenge Discovery.
Ø Time Factor: Ask the Trial Judge for more time – you will need it as White Collar Cases are complicated and document intensive. Accentuate any Government time delays.
Ø Paper the Government: Basically, the Fed’s Strategy in reverse. Sets up how serious you are about winning in Trial. Shift the momentum!
Ø Research the AUSA & Trial Judge: Contact other attorneys who have litigated with your case’s AUSA & Judge. This is invaluable Trial Strategy information.
Ø Exploit Fed Negligence & Mistakes: The Federal broad discretionary powers can often cross the line. Spend careful analysis research & time in this area – it will pay off!
Ø Frequent Communication with the Feds: Starting in the early stages of the Federal Legal Process, it is important for the Defense Team to be in constant contact with the AYSA, FBI, IRS, etc. Provides insight into the Fed’s case, as well as, establishing your confidence in proceeding to Trial.
Ø Focus on the Fed’s Heavy Handedness & Intimidation: This won’t be hard! Challenge their Actions and the Defendant’s Constitutional Rights. Make the Defendant appear to be the victim.
Ø Meet with the AUSA just Before Trial: Apply pressure with the negatives your Defense Team has uncovered and see if the AUSA will offer a sweeter Plea deal.
Ø Poke Holes in the Fed’s Evidence: You don’t have to create your own unique case, as much as, poke multiple holes in the Fed’s evidence and case. Lots of little holes will eventually ass up to one big gaping hole and substantial Reasonable Doubt.
Ø Clearly Understand & Apply the Rules of Evidence: This is crucial and central to good Trial Strategy. The FCDC Legal Guide explains the in’s and out’s of the Federal Rules of Evidence.
Ø Jury Selection: Building Jury Empathy starts in the Selection process. You want Jurors who aren’t biased, are open minded and will listen.
Ø Legal Defense Team: Please refer to the FCDC Article on Criminal Defense Team Formation for information on building a suitable White Collar Defense Team. Please also review FCDC’s Services Section for our Expertise and Defense Team Formation Services.
Ø Organization: One word, Critical. From Day One of the Legal Process, it is important to have organization systems and responsibilities in place to deal with the volume and complexity of a White Collar Case. Members of the Defense Team must be able to collaborate, share and disseminate information securely and strategically.
Ø Keep the Case Simple: White Collar Cases are often complex. Don’t lose the Jury in its complexities! Visualization tolls help tremendously.
Ø Be Prepared and Ready: Federal Courts tend to be quite efficient. Be ready to roll out the case within a week or two time span. Preparation is key!
Ø Know & Apply the Law: This may sound rudimentary, but good research and Federal Law Expertise is absolutely crucial. An Expert Federal Criminal Law Attorney is invaluable to the Trial Attorney(s) (see Defense Team Formation for more info on Expert Attorneys).
§ A contingent of skilled support professionals is also essential: Legal Consultants, Paralegals, Junior Law Associates, Jury Consultants and so forth.
Ø Create Reasonable Doubt & Grey Areas: The Feds have to win the case – all the defense needs to do is instill Reasonable Doubt for each and every count. This sounds easier than it is to do in the Federal System and should not be the only Trial Strategy.
Ø Impeach Federal Witnesses and Experts: Impeach where and if you can, but at a minimum, offset the balance with your own Witnesses and Experts. Establish your credibility.
Ø Be Aggressive: The Trial Attorney certainly needs to be focused, aggressive, forward thinking and quick thinking. The Fed’s #1 Goal / Tactic is to overwhelm, bury you and steam roll you. Aggression supported by solid law application, expert advice, substantial research, proactive investigation and solid Trial Strategy is a must!
Ø Harness the Power of a Federal Judge: If used properly, a Federal Judge can be the equalizing force in a case, which always seems to lean toward the Government. Unequivocal Legal Reasoning and Argument can win over the toughest Judges.
Ø Build Empathy: Don’t act above the Jury, build empathy and sympathy. This will in turn earn their attention and objectivity, if not swing the bias to your side!
Ø Personalize your Case: Make your case about your good Character, and how the Government has maligned you. You want the Jury to understand who you are as a person.
Ø Keep the Jury’s Attention: Please consult the FCDC Legal Guide for key ways to keep and hold a Juror’s attention. Very Important!
Ø Don’t take the Stand: Tempting but not recommended! A skilled Trial Attorney and Defense Team can affect a solid Defense without your testimony. Don’t give the Government opportunity to personally impugn your character, as it will stick and stay in a Juror’s mind.
Ø Defense Witnesses: Speak to your business, ethics, professionalism, integrity and character by using strong (unimpeachable) witnesses. Experts should be used to refute Key Government assertions and testimony. Witness preparation is important but testimony should not be canned or contrived.
Ø Community, Civic, Volunteer & Family Relationships: Demonstrate your strong ties – makes your case more believable and builds credibility.
Ø Support in Court: Friends, Family, Business Associates, your Minister, Church Members, Community Leaders, and Volunteer Leaders, etc….Personalize and strengthen your case by a show in force.
Ø Defendant’s Demeanor & Non-Verbal: Be careful of your non-verbal, but it is ok to appear stresses and dismayed when the Feds malign your character. It builds the Empathy Card and makes you a real person, which a Juror can relate.
Ø Proactive Evidence: Creating Reasonable Doubt is an important Strategy but bringing your own evidence builds credibility. However, remember the flip side: the Feds can attack it!
Ø Objections: Objections, if not frivolous or disruptive, can show the Government is trying to railroad you and sets up an Appeal if necessary. Having a skilled Defense Team at the Trial Defense Table is important to maximizing this powerful tool.
Ø Clear Strategy: This may be my most important Trial Success point:
ü Good Trial Preparation Process
ü Step by Step, Focused Trial Strategy
ü Flexibility Built into the Trial Strategy
It is a building block; process centric, systematic Trial Strategy which wins the day. However, it is extremely important to have a skilled Trial Team in place which offers a necessary, built in Trial Strategy Flexibility. Be ready to roll with the punches, reformulate and re-strategize to overcome the inevitable Trial hurdles and surprises (or gifts). You must have a Defense Team that thinks and adapts well on their feet, in real time. Team is the optimum word here. Remember, strategy is Focus.
Ø Resolute: Don’t waffle or waiver under intimidation. If you and your Defense Team have prepared well, the strength of your case will show. See it through!
Should you go to Trial? Considering the Risks……
Ø Stress: Stress on your family will be immense.
Ø Bad Publicity: A conviction will lead to worse press.
Ø Invasion of Privacy: Your entire life will be on Trial.
Ø Angering the Judge: If you are convicted, the Judge may feel you wasted the Court’s resources and tax payer money, paving the way for a harsh sentence.
Ø Statistics are in Favor of the Feds: The Government has an extremely high conviction rate: 90% of all cases result in convictions. Why?
ü Feds have unlimited Resources.
ü Feds have a mandate to win at all costs.
ü Feds using intimidation and the fear factor to get Defendants to Plead Guilty.
ü Federal Law is broad in scope and can ensnare many (i.e. Conspiracy or the “should have known” Relevant Conduct law application).
So, should you proceed with Trial? I can’t answer that for you. In my case, I didn’t due to a host of factors, principal ones being: Relevant Conduct, Bad Publicity, and Stress on Friends, Family and Business Associates. If your Defense Team has developed a sound Case * Trial Risk Analysis, it should be in black and white for you, helping you to adequately weigh options and risks.
Good Trial Strategy leverages, the Government’s often abuse of power, any mistakes and intimidation in support of the Defendant’s case, building critical empathy with the Jury. In the end, cases are mostly about Reasonable Doubt, establish enough of that with some of the proactive trial strategies as described in this article, and you have a solid Trial Strategy. It is all about:
ü Discussions and negotiations Pre-Trial with the Feds.
ü Excellent Discovery Review & Analysis
ü Pre-Trial Preparation
ü Case Mitigation Factors
ü Trial Risk Analysis
ü Trial Strategy Development Process
Good Trial Strategy begins in the earliest stages of the Legal Process, as early as the case Investigation.
Summary
In this Article on Trial Strategies for Federal White Collar Criminal Cases, I discussed the following areas:
Reasons to Pursue Trial
Setting the Tone: Pre-Trial Motions
Trial Strategy & Tips
Should you go to Trial? Considering the Risks
Be sure to read the FCDC Articles on Defense Team Formation and Sentencing for more Trial Strategy considerations.
The FCDC Legal Book, The Federal White Collar Criminal Defense Guide, goes into substantially more detail about the Trial Strategies, Risks & Considerations I outlined in this article.
This Article is written by the FCDC Legal Consultant, who was a White Collar Defendant and writes from the perspective of real world experience with the Federal Criminal Legal System. The FCDC Legal Consultant also has his Paralegal Degree and has completed advanced studies in Criminal Law & Procedure, Business Law & Civil Litigation. Please consult My Story for an account of his legal struggles. The About Us Section has details on his expertise.
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Disclaimer: Federal Criminal Defense Consulting, LLC (FCDC) is a Legal Consulting Firm and does not act in the capacity of an Attorney. Ask an Attorney for Legal Advice regarding your situation.
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