During the Sandusky trial, MaleSurvivor Communications Committee Chair Thomas Hodson (who is himself a former attorney, trial judge, and is now a journalist) will be sharing with us some helpful explanations of the stages of a criminal trial. Our hope is that sharing this information here will help people better understand what is going on behind the scenes, and eliminate some of the confusion and uncertainty that will inevitably come up. Please follow our Twitter (@malesurvivorORG) and Facebook pages for more information and reactions as well.

Sandusky Trial: Usual Defense Strategies

In a criminal case, the state must prove every element of an offense beyond a reasonable doubt. The defense needs to prove nothing. Therefore, the primary strategy of the defense is to poke holes in the prosecution’s case and raise reasonable doubt about the defendant’s guilt.

The defense may try to accomplish this by a combination of attacking the credibility of the state’s witnesses and/or by presenting witnesses of its own to raise doubt. However, there is nothing, in the law, requiring the defense to put on any witnesses. The defense is not required to prove anything.

During a trial, the defense strategy is usually three-pronged: 1) to convince all 12 jurors that the defendant is “not guilty,” 2) to create enough doubt that a unanimous verdict cannot be reached, and 3) to create “reversible error” in the record so that the defense may win on appeal.

Let’s look briefly at each strategy.

As with the state, to receive a “not guilty” verdict from the jury, the defense must convince all 12 jurors. It must be a unanimous verdict. This, sometimes, is a monumental task. But, the defense will quickly discuss with the jury that a verdict of “not guilty” is not the same as the jury finding the defendant “innocent.”

Sometimes defense counsel will argue that “not guilty” only means that the state failed to prove the defendant guilty. In short, the argument will be that the state failed to present sufficient credible evidence to find the defendant guilty beyond a reasonable doubt so, therefore by default, the defendant must be found “not guilty” – even if the jury finds the defendant’s actions abhorrent.
However, if the defense does not think that it can convince all 12 jurors that the state has failed to meet its burden, then often the defense will focus on just a few of the jurors to have them hold out for “not guilty” during deliberations – even if the majority is voting for a “guilty” verdict.

In Pennsylvania, if a unanimous verdict cannot be reached after earnest efforts to have unanimity, then the court will find a “hung jury” and technically declare a “mistrial.” That means that the prosecution would need to assess whether to have a new trial with a different jury at a later date and basically do this all over again. It also forces the state’s victims to be compelled to testify a second time.

If there is a mistrial, sometimes the prosecution will seek a negotiated plea from the defense or dismiss the cases altogether. This is what currently happened in the Sen. John Edwards case. The jury could not reach a unanimous verdict on 5 of the 6 counts – so a hung jury (mistrial) was declared and just recently, the government dismissed all charges against Edwards – instead of having a new trial.

Also, sometimes defense counsel will move for a mistrial even during the trial alleging to the trial judge that something occurred to make the proceeding unfair or unconstitutional. In other words, stop the proceedings because of rules infractions. This could be anything from alleged juror misconduct, to alleged prosecutorial misconduct, to disagreements between defense counsel and the defendant. The judge would need to decide whether any conduct was so grievous as to demand a mistrial. Again, if granted, the state would need to decide whether to try the case again.

Finally, throughout the case proceedings and throughout the trial, the defense is raising legal issues for the trial judge to decide – such as rulings on motions or objections to evidence. The defense tries to raise as many of these as possible to get an advantage at trial and to force the judge to make many different rulings. The defense is not only trying to get an advantage at trial from the rulings but also is trying to sometimes force the judge into making mistakes.

If the defendant is convicted, the defense may then appeal and the appellate counsel would claim to the court of appeals that the judge’s rulings were unfair, contrary to law, and/or unconstitutional. This is called “appealable error.” If the appellate court agrees, then a conviction may be overturned (reversed) and a new trial ordered. The state would then need to decide whether it would go forward a second time.

Every case mandates different defense strategies but the ones just described are typical in most felony cases.