Category Archives: Pre-Indictment Strategy
The primary concerns among police, prosecutors and judges is why the defendant is interested in child pornography (assuming they are guilty of course, since most police and prosecutors do, along with a few judges). The purpose of the evaluation is to determine if the client is actually interested in children. Do they pose a risk to anyone?
If the client already confessed and you are playing for mitigation or just challenging the case from a different angle, then there are some great experts that can fully evaluate the client. However, this becomes more difficult of the person maintains their innocence since a lot of testing instruments only work if the client agrees that they are guilty. Nevertheless, there are a few experts that are willing to work with people who maintain innocence. Having proof for the court and the prosecutor that your client is not a risk to anyone may go a long way to prove that the client should receive harsh punishment. It may also help the client get out on an ISP application.
It might sound odd, but yes, trial prep should start from the first day the attorney is hired for any case, including a child pornography case. Of course, we all know that most cases don’t go to trial and child pornography trials are, unfortunately rare. Nevertheless, we have found time and time again that the reason we get good results for our clients is because we plan for the case to go to trial whereas other lawyers plan to plea their client out.
Early on in the case, your attorney should be able to determine the primary defense strategy. Either the defendant made a statement or they didn’t. If the client did not make a statement, the choices are wide open. If the client did make a statement, you must assume it will come in at trial. As a result, determining exactly what this statement contains will be important but not fully possible. Its amazing how many times the clients forget what they said to the police. Between talking to client and the prosecutor, the attorney should be able to get a good idea as to what the statement contains. You can then start preparing accordingly.
Preparing for trial also means preparing to file motions pre-indictment and post-indictment, determine if experts needs to be hired, thinking about witness to interview as well as what plea bargains are possible. After all, an attorney cannot advise their client to take a case to trial without fully understanding the difference between the plea and trial.
While a computer crime such as child pornography is not your typical crime involving numerous eyewitnesses, there may still be witnesses that need to be interviewed in the case. Ruling in or out this possibility early on in the case is important. As previously discussed, if these witness interviews could be considered Hogan evidence, then you may be able to get the case dismissed before indictment. Even if this is not possible, it is important to identify your witnesses and lock them into a statement now.
You would be amazed how relationships change as the case lingers on for what could be years. Thus, one cannot assume that the witness that is on your side today will be on your side tomorrow. While you may not want to call a hostile witness at trial, you will at least want to make sure they the State cannot call these people. Keep in mind that in New Jersey (and some other jurisdictions) you only have to turn over this information if you plan to use it. Thus, if the State doesn’t indicate that they have an intention to call this person as a witness and you don’t either, the State may not need to be given a copy. Of course, the local court rules and the cases interpreting them should be consulted on this topic.
Witnesses to child pornography cases may be rare, but two groups of people jump right out: people that live with the defendant and anyone else that handled the computer at one point. This often includes family members and sometimes co-workers. In other cases, it could be the seller of the computer or the person repairing same. Of course, you are not going to get to interview the police officer. The defendant’s use of the computer, the problems with same and the use of the computer by others will be all important topics of the interview.
In New Jersey, Hogan evidence is exculpatory evidence given to the prosecutor before indictment. By law, the State must present this evidence to the grand jury. Like many pre-indictment defense strategies, this one is rare both because it is often difficult to develop such evidence and it is rare to find a lawyer that is willing to explore this issue. Thus, while not every case will have Hogan evidence available, obtaining same can be the most important move for the defense attorney.
In almost every case where I have presented Hogan evidence to the State, they have not moved forward with the grand jury presentation. In the few cases where they did move forward, either the grand jury no billed the case or the State did not present the evidence. Where they did not present the evidence, we can then file a Hogan motion which is a motion to dismiss the indictment for failing to present such evidence. As a defense attorney, you want as many arrows in your quiver and motions are your best pre-trial arrows. Thus, even if the motion is not successful, it can lead to a plea bargain as the constant bombardment of motions wears down the State.
Too many criminal defense lawyers are of the opinion that after the person is arrested, the only thing to do is to file a bail motion. If the person is already out of jail, all they are doing is waiting for the indictment. This is crazy. Staying in touch with the prosecutor is very important. It is possible to resolve the case before indictment and often times, this may be much better than a post-indictment resolution. With the case being informal, it is possible for the State to reduce or just dismiss the charges against the defendant. We have done this many times and while we don’t make much money on such a quick case, the results are priceless. While our anecdotal evidence speaks for itself, prosecutors have told us that we are getting a good offer because we were on top of the case so early.
Even if the case cannot be resolved, a discussion with the prosecutor can help the defense attorney size up the case and size up the prosecutor. Having as much time to prepare for a case is vital and waiting until indictment is not helpful if it can be avoided. That is the lazy way out and unfortunately, too many lawyer take that route.
A rarely used motion in New Jersey is a motion for a probable cause hearing. Even many experienced criminal defense attorneys don’t know that they exist or have never filed for one. We file them several times a year and they have been successful. On the rare occasion, it has resulted in a case being dismissed. However, the real goal is to force the State’s hand into taking action on a case.
When it comes to the defendant, time is often on your side. Witnesses move, forget, die, disappear, etc. On the rare occasion, evidence can get destroyed or lost. A significant period between arrest and conviction can help with plea bargains and sentencing. However, with computer crime cases, there often reaches a point where it has gone on for too long and the State needs to be forced to lay its cards on the table or dismiss the case. Forensic evidence doesn’t disappear, forget, etc, so the evidence is what it is.
Computer crime cases tend to take a long time to put together due to a variety of reasons. A probable cause motion can force the State to act when they are not ready. This may leave holes open for the defense to explore. Even if that doesn’t happen though, it will still allow the defendant to bring the case to some sort of conclusion so they can move on with their lives.
When a person is arrested for a felony, they are almost always given a bail that they have to post in order to get out of jail. A bail is money (sometimes property) that is used to assure the person’s presence at court. If they don’t show up, they forfeit the amount of the bail. If they are given a 10% option with the court, they only need to post 10% with the court and same is refundable. However, most bails are not set up like this and in order to get out on 10%, you have to post the bail with a bail bondsman. This money is never returned.
With a defendant or a family operating on a limited budget, there may not be enough money to fund a full blown trial and pay a bail bondsman. Thus, they have to make a choice. Get out on bail or stay in jail. Unfortunately, human beings are focused on immediate gratification. Instead of looking at the big picture, they just want to get out of jail right away. As a result, they can’t afford a good lawyer and then wind up having to go to prison in the end. If you asked most people sitting in prison what is better: a long prison sentence or a short stay in jail, I’m sure they will all choose the latter.
Thus, when forced with a choice of bail or jail, the smart choice is by far, always jail.