Page 58 - CFDI Guide

other questions can be answered: Does the prosecution discovery support the charges; or does

information, facts, and evidence developed by the CFDI define and support a defense strategy?

The defendant does not have to put on a defense – the burden of proof is on the prosecution.
However, we know a defendant must do so. In fact, there is a legal and ethical obligation for their

defense time to do so competently and vigorously before the moment of trial. The CFDI, working with
the attorney-client, may have multiple opportunities – or develop those opportunities – during the

judicial process and before trial. Even if no defense is offered, the work of the CFDI will be important
to the attorney-client during all stages of negotiations and the prosecution’s case. Not offering a

defense is not the same as having no defense. The judicial process is chess and martial arts – critical
thinking and strategy with action when needed, and no action when not needed.

As an example of how the work of the CFDI may come together for the defendant, we go back to the

three questions which must be answered, or there is reasonable doubt. In the example of a gunshot
wound homicide, there was a decedent, a firearm and the defendant at the scene.

• The defendant admitted shooting the decedent. The defendant stated the decedent made

unwanted advances and the defendant could not leave – the decedent was blocking the exit. They
argued, the decedent brandished a handgun, they wrestled over it, the defendant gained control
and shot the decedent – the defendant then left the scene. In review of the discovery, at no time

is this information in any record or report – even when the defendant stated this on a video

recorded interrogation. Note – the gender of the defendant and decedent are not indicated. Would
it make a difference to law enforcement or a jury if the were opposite genders, same genders, or

which gender was the decedent vs. the victim? It may, and should be explored by the CFDI as
potential bias.

What has the CFDI found to support or refute the defendant’s claims?

At no time in any discovery were the positions of the persons described.
The trajectories and position of the shooter – defendant – were not described.

• In a pre-trial hearing a detective testified to pre-meditation because the sequence and trajectories

of multiple gunshots showed the defendant was not acting in self-defense.
• Additional information found the decedent had no experience with firearms and never owned

one.

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