In the last Attorney Sam’s Take, we discussed the case of “Whitey” Bulger and the new issues brought in that case. Yes, again.

As we ended that blog, it became apparent that the latest issue is whether he will be allowed to present whatever defense he wishes to in front of the jury.

Many people assume that a criminal defendant has the unfettered right to choose which defense will be presented on his behalf to a jury. Those people are incorrect.

In the Bolger case, we see that the prosecution is already trying to limit Bulger’s defense options. More specifically, Bulger claims that he had been given immunity from prosecution for any crimes he might commit while he was an informant for the federal government. There are two arguments that the defense is making to counter the Government’s attempt to stop that defense in its tracks. First is that the Government’s position violates the “Separation of Powers” rrovision in the United States Constitution. That is a more complicated issue and is better discussed herein another day. The other issue, however, is ripe for our discussion.

The defendant claims that he has the right to present the defense he wishes to present at trial.

“Sam, why wouldn’t any criminal defendant be allowed to present the defense upon which he relies?”

There are many limitations to a defendant’s choice of defenses at trial. Many of the rules impacting on this are the rules of evidence. The rules of evidence were created so that both sides get a fair trial. However, these rules often prevent evidence from being heard and arguments being made. The rules can cut against either party. In the situation we are discussing, they can cut against the criminal defendant’s choice of defense.

The type of motion brought by the prosecution to preclude Bulger from arguing about the alleged immunity is usually brought at the start of trial. they are called “Motions In Limine”. The reason why these motions are heard at the start of the trial is that discovery from both sides has been completed, the issues at trial should be known by now and to make sure that everyone is clear as to what the “groundrules” for the trial are.

In this case, at least for this issue, the prosecution has not waited for the beginning of trial. The prosecution indicates that there is no evidence which establishes any kind of immunity given to Bulger. Of course, that really cannot be established yet. We do not know whether or not Mr. Bulger himself will take the stand on his own behalf. It’s would appear as though, should Bulger testify, he would testify as to the grant of immunity. If that occurs, then, clearly, there is evidence of that immunity in the case.

On the other hand, nobody will know whether he is going to testify unless and until he takes that stand.

The Whitey Bulger case has seemed to be treated differently ever since he was brought back to Massachusetts. Therefore, let’s look at a more common type of problem that presents this issue. Let’s discuss the issue of self-defense.

You might think that a criminal defendant, facing assault or murder charges, can always argue self-defense. In a case, for example, involving a fight, one would expect of the defendant to be allowed to raise such defense. Usually, he is. Not always, however.

For example, let’s say a defendant does not testify and does not present any witnesses. The defense counsel while cross-examining a Government witness tries to establish that his client was being attacked when he pulled out the uzi y and riddled the deceased with bullets.

Let’s assume that the government witness does not agree with that version of events and so does not testify accordingly.

Now comes the time to give closing arguments. The defense attorney wishes to argue self-defense. However, there is no evidence in the case to establish self-defense. The fact that the defense attorney, during cross-examination, attempted to insinuate self-defense does not carry the day. There has to be some evidence. Therefore, in such a case, a judge is likely to prohibit the defense attorney from arguing self-defense and refuse to charge the jury as to self-defense.

There are other limitations that can affect a proposed defense. For example, not all defenses that are applicable to some crimes are applicable to others. It may seem laughable for me to tell you that self-defense is never an applicable defense to a charge of drunk driving. Likewise, the defense of consent is not valid in a statutory rape case.

You will seldom see an attempt to bring the defense of diminished capacity to a drunk driving or the vehicular homicide case. Generally, attorneys have tried to present the argument that the defendant was absolutely blitzed when she went behind the wheel and so did not understand the fact that she was going to drive while intoxicated. Nope. The voluntary intoxication in this matter will not allow such a defense.

Simply stated, the range of evidentiary airy rulings that control a trial, and the evidence produced therein, are vast.

“So then how are we supposed to understand and anticipate what we can raise as a defense at a trial?”

You don’t need to. That’s what your lawyer is for. Of course, as I have often told you, the more experienced and talented the attorney, the better strategies for trial can’t be set up long before the trial even begins.

It is one more reason why the retention of an experienced criminal defense attorney is vital if you want to have the best possible chance at coming-out of a criminal prosecution as unscathed as possible.

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