Why Prepare Trial Briefs?

By: Brett A. Purtzer
 

            As most of us who practice criminal law are aware, cases that result in a trial are those where the state has failed to offer any meaningful plea and a trial is not a risk, or secondly, and more concerning, those cases where your client is not guilty of the charge and you have concluded that the government has wrongfully charged your client.  Unfortunately, in many cases, particularly those charging severe assaults or sexually improper behavior, the prosecutors tend to get the judge’s ear in all pretrial matters, beginning with issues concerning pretrial release.  In such cases when you are approaching trial, the one area in which you can level the playing field is with a well and thoroughly thought out trial brief so that the court will consider those issues that are necessary to insure that your client receives a fair trial.

            As an example, some of the most difficult cases deal with claims of sexual improprieties committed against children by either an estranged father, boyfriend or family friend.  Under such circumstances, once you go through the investigative process, you will oftentimes discover that the genesis of the claim arises from some traumatic event in the child’s life, unrelated to sexual abuse.  Unfortunately, the child may exhibit some type of behavior that a concerned parent believes is abnormal, and through some magical process a sexual abuse claim arises where truly fantastic claims are made by the child and then reinforced by the parent.  Frequently, the concerned parent is the child’s mother and the father or male partner of a seemingly functional family is the one that is most readily accused of such improprieties.  Investigation often reveals that the mother didn’t care for the accused anyway, and the child’s claims are readily accepted and often nurtured from that point forward.  Be that as it may, upon completing your investigation and determining that the child’s reason for making the allegation is unrelated to any sexual impropriety, but, rather, to some traumatic event in the child’s life and/or the mother’s life, the need for a trial brief is imperative.

            Within the trial brief, counsel can set forth not only the witnesses’ anticipated testimony, but can also broach those areas where some difficulty may arise when presenting your defense unless you can convince the judge that various evidence should or should not be admitted because your theory of the case warrants either the exclusion or admission of such evidence.  By crafting a trial brief that outlines not only the facts that you anticipate will be presented at trial, but also the testimony that is advantageous to your client, you can inform the judge in a clear and cogent manner why your client should get a fair shake.  As many of you know, sex cases are particularly difficult because an overriding belief prevails that children, particularly young children, never lie about sexual abuse because (a) they have not been exposed to sex before and would not make such claims absent some abuse, or (b) children are simply incapable of making up such stories that have such dire consequences to your client.  As such, informing the judge about what you anticipate the evidence will establish will allow you to present your theory of the case so you are not hindered by the judge who has undoubtedly faced this type of charge many times previously.

            Additionally, preparing a trial brief in a convincing fashion will assist in outlining your motions in limine that you will undoubtedly raise< as a judge will have a complete picture as to why your motions in limine should be granted.  Sex cases often elicit rulings from the judge that indicate you will have an uphill battle throughout trial.  As Court of Appeals’ decisions often rationalize the admission of damning evidence against your client by stating that the court committed only “harmless error” because the other evidence was overwhelmingly against your client, trial courts realize that their broad discretion in evidentiary matters will not be reversed except for a manifest abuse of discretion.  As such, highlighting those evidentiary matters in your trial brief that you know are going to be problematic, with a reasoning as to why the evidence should be excluded or admitted, will benefit your client and insure that your client receives as fair a trial as possible under such severe circumstances.

            By constructing a trial brief, you are able to pinpoint those issues that are significant, present those issues to the judge in a positive light and focus on the nuances and particulars of your trial strategy.  By so doing, you will assist your client and may discover areas that you need to concentrate on to make certain that you do not overlook anything in the preparation and delivery of your case.   As such, a trial brief is an invaluable tool that should b used when a viable defense exists, but obstacles are present that you need to overcome, so that the judge will allow you to present your defense in a manner that is meaningful to the jury and, most importantly, helpful to your client.