1) Work with the evidence.
Play the hand that is dealt to you, not the hand you want. For example, you may not have anticipated that your phone calls would be intercepted and recorded, but they were. Because of that fact, your defense cannot contradict what was said in recorded conversations. You must be familiar with the evidence and cannot disregard it.
2) You are never better than the evidence.
You are as guilty as the evidence shows you are. If the evidence shows you are guilty, you will be found guilty. If the evidence shows you are not guilty, you will be found not guilty.
3) The government does what is in its best interest.
The government can always bend the rules. During plea negotiations a prosecutor will often say that a charge cannot be reduced because it is against “office policy” or it is not “morally defensible.” But if the government is precluded from using a key piece of evidence, or if it wants to protect the identity of an informant, the government will be able to justify a reduction.
For example, during plea negotiations I once asked a prosecutor if I could reserve the right to argue that my client’s conduct was “aberrant.” The prosecutor refused. He said that it was not the policy of the office to permit that kind of provision in a plea agreement. However, the prosecutor then realized that he could not prove a key element of the crime without exposing an informant and suddenly he felt it was appropriate to include a provision allowing my client to argue for “aberrant conduct.”
4) He who calls the co-defendant to testify, loses.
A co-defendant in a criminal case is a criminal. Asking a co-defendant to vouchsafe for you is not helpful. Logically, it should be, but in most instances juries do not believe what a co-defendant says. If the co-defendant gets on the stand and says, “I am a drug dealer, but the defendant is not,” a jury probably will not buy it because the witness is a convicted criminal.
5) If your defense is not believable, a jury will not believe you.
Take the following examples:
A defendant was stopped in his car and a search revealed several hundred kilos of cocaine in the trunk of the vehicle. His defense was, “I didn’t know the cocaine was in the trunk of the car.”
A defendant was speaking on the phone and made several references to his “Tio Rico” (literally Uncle Rico). A witness in the case then alleged that “Tio Rico” is actually code for Puerto Rico, a piece of evidence that is crucial for a conviction. If the defendant argues that theoretically he could have been talking about his Uncle Rico, he better have an Uncle Rico or he will lose the case.
If your defense is improbable or far-fetched, a jury simply will not buy it. So be prepared to prove everything you say. If you cannot, then you must be prepared to deal with the reality of the situation.
6) Keep it simple.
Any defense that is too complicated is not a good defense.
7) Be aware of the law. Do not fool yourself.
A defendant was sent to examine properties for a drug dealer who was to receive them as payment for drugs. The defendant claimed that he had nothing to do with the drug deal itself because he only inspected the properties. He did not believe that a jury would convict him. He was wrong. The law provides that evidence of any knowing participation in a drug deal makes you guilty. Once a jury hears that, they will convict you.
8) There is no justice, only law.
Despite what people may think, the criminal justice system operates according to laws, not justice. Whether or not a law is “fair” does not matter. For example, if milk was suddenly outlawed, people quite simply would no longer be allowed to drink milk, fair or not.
A defendant once exclaimed to a judge, “I want justice.” The judge immediately fired back, “In that case you came to the wrong place. This is a court of law, not justice.”