4. ANALYSIS AND CASE HYPOTHESIS
You have now visited the scene, talked to neighbors, and feel comfortable that your client is now telling you the truth. You have read the statute and feel comfortable that you know what happened. What do you do with it?
There are usually three types of defenses:
Positive case:
A positive case is a case where you will accept as true, every aspect of the Commonwealth's case but prove an additional fact which will negate guilt. All affirmative defense cases are positive, as are accommodation and legal right or apparent legal right.
Negative case:
A negative case is a case wherein you will identify the weakest element in the case and by attacking it, or the evidence in support of it, keep that element and fact from being proven beyond a reasonable doubt. Intent, malice, weight, value, materiality and identification are all examples of negative cases. Remember there is no more unreliable witness than a eyewitness. Attacking the credibility of a witness or victim or the establishment of technical defenses, such as suppression, are negative defenses.
"Damage control":
A "damage control" case is a case wherein legal guilt of the defendant is all but a foregone conclusion. There is ample valid evidence to convict the defendant without too much difficulty on the part of the government and to defend against the obviousness of the evidence would discredit your client and compel a jury to desire him dead. The sole purpose of the "damage control" case is to get the jury to reduce the sentence. It may be tried through the Commonwealth's witnesses or by positive evidence; that is by presenting witnesses. An example in a murder cases the "son of a bitch deserved to die" defense. A jury will not punish as severely in a murder case, if the "son of a bitch deserved to die."
Even before preliminary hearing will you should have an idea as to the direction of your defense. If you do you can use the preliminary hearing to start locking in the testimony of government witnesses to support your defense. If, on the other hand, your defense is not definitive, the preliminary hearing, by its nature, can provide you with added information to enable you to formulate the defense.
You start to mold the case with preliminary hearing. You are not going to put on a defense. You are going to see what and how much they have. If you have formulated the defense you will set up their facts so that, in the future at trial, your defense will succeed.