It is not up to the defendant to point to evidence that is potentially exculpatory. All the defense has to do is put enough questions in the minds of the jury about his guilt. Without the DNA, this case has reasonable doubt all over it. With the DNA, it becomes a bit harder, but not impossible.
MOO.
Yes it is up to defendants to point to exculpatory evidence. An alibi can be exculpatory.
What is exculpatory evidence? The United States Supreme Court has held that exculpatory evidence is any evidence that is favorable to the defendant on issues o
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How do I get the evidence that helps me?
You and your attorney should not simply count on the prosecutor to turn over exculpatory evidence. Instead, it is up to you and your lawyer to be proactive about getting any and all favorable evidence.
What does this mean?
Let’s cover the easiest scenario first: helpful evidence that you know exists. Initially, you will be the most knowledgeable person about your case. So, pass that knowledge on to your attorney. For example, there may be helpful documents on that computer that the government seized from you. Or, that key witness for the government may be a well-known crook that no one would ever trust. Tell your lawyer! A skilled white collar defense attorney will know what steps to take in order to get that evidence, and to use that evidence effectively.
But how about a situation where you don’t know what helpful evidence might be out there? This is where it is crucial to have an experienced, creative and thorough lawyer representing you. An effective lawyer will do the following to ensure you get all of the helpful evidence that you are entitled to in your case:
Conduct an independent investigation. This may be hard to believe, but prosecutors and agents are not out there looking for all of the facts and evidence that will help your case and hurt theirs. That is your lawyer’s job, and it will include things like interviewing witnesses, obtaining documents (through subpoena or other means), and hiring experts if necessary. Investigation will often reveal helpful information, or expose weaknesses in the government’s case. Sometimes, it will reveal entire categories of helpful evidence that no one knew existed.
Thoroughly review the evidence (or discovery) provided by the prosecution. Often, the materials turned over by the prosecutors show that other favorable evidence exists. An experienced criminal defense lawyer, looking at the discovery with a critical eye, can often find clues about the existence of helpful information that has not been turned over.
Prepare detailed requests for exculpatory information. It may seem obvious that if you want helpful evidence, then you should ask for it. But this simple rule is overlooked, too often, by attorneys. Requesting exculpatory evidence, in a way that is clear but sufficiently detailed, is very important. There are a couple of reasons for this. First, prosecutors who get a direct request for a specific document or a specific type of evidence are much less likely to brush it off. If the evidence exists and they have it, but fail to turn it over, they are risking more than just the case. Similarly, courts tend to take it a lot more seriously when a piece of evidence that has been specifically requested by the defense is not turned over. This can result in sanctions—some form of penalty during the trial, up to and including a dismissal of the charges. On appeal, it can mean reversal of a conviction.
In sum, there is no substitute for having an experienced and aggressive defense attorney, who will do all that is necessary to make sure you get evidence favorable to your case—whether at trial or at sentencing.
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