A South Carolina Criminal Defense Blog

Trial Chicken

H/T to Public Defender Revolution for putting a label on “Trial Chicken:”

Also, one way I can sometimes achieve good results is by capitalizing on the volume of my cases and my experience with the system: that is, I play Trial Chicken. And while Trial Chicken isn’t pretty–the Best Practices People would surely frown on it–I get more dismissals out of trial chicken than I do any other way.

In the context of criminal defense, prosecutors and sometimes judges threaten trials like it is a bad thing.  The truth is, they don’t want your case to go to trial – if everyone insisted on their constitutional right to have the evidence against them tested in a trial by jury the system as it is now would break down.  The system is best served when every person comes into court, their attorney negotiates the best guilty plea possible, and all stand in line to enter their guilty pleas one after the other.

For the most part, that is what I see happening in our courts.

Trial Chicken implies that each side does not want a trial, and so one or both will swerve at the last minute.  But, if we’ve done our investigation and preparation and the case is ready for trial, we are not likely to swerve.  If Billy and Sue are playing “chicken” in cars, but Sue is bound and determined to smash into Billy’s car, Sue is going to win every time.  Even when they crash.

4 Comments

  1. March 3, 2010    

    Something unexpected always happens during a trial. It is almost always good for the defense. Of course, this requires that the defense has done the necessary investigation and preparation. Trials are good.

  2. March 6, 2010    

    You are totally right–the key to trial chicken is to NOT SWERVE! Because if you’re known for swerving at the last minute, it won’t work. I have to admit that I sometimes play trial chicken even when I am not as ready as I would like to be–but if I waited until I was 100 % ready on a lot of my chippy-shit cases (I am a public defender), I would lose out on a lot of dismissals. But really, I am a criminal defense lawyer–what do I have to prove at trial? Lots of times trial chicken comes from having nothing to lose.

    And even in the cases where the prosecutor doesn’t swerve, we occasionaly have what amounts to a slow guilty plea. But I myself never lose by doing these trials (I call these “Fuck-You” trials); because I ALWAYS discover some new police bullshit or prosecutor tactic that I’ll be better prepared to handle the next time. Like the stupid analogies that this prosecutor always uses; or the cheesy way they’ll try to qualify a cop as an expert without notice.

    We should never be afraid of trials–they are more often are friend than not!

  3. March 6, 2010    

    Thanks Carol. Ever giving names to the amorphous concepts that govern the practice of effective criminal defense. “Fuck-you trials” is a good one, too. There are cases that we take to trial just so the prosecutor knows that we will not plead guilty; particularly where the client has nothing to lose by trying the case win or lose – the goal can be to drag it out and make the prosecutor as miserable as possible. Wait, I mean . . . the goal is to fully test the evidence and uphold the Constitution on behalf of my client.

  4. March 10, 2010    

    Funny. I almost forgot that I sometimes say I am going to have to use my “skirt trick.” This means that during the trial, I intend to pull my skirt up over my head in order to distract the jury’s attention from the overwhelming evidence against my client. The other day, I was coming up the stairs in the main courthouse, and a prosecutor I knew was in trial was getting yelled at by a person who appeared to be a witness in the trial. When the witness’s voice finally receded due to distance, the prosecutor and I stood there awkwardly for a second. I didn’t want to say Good Luck, but I did feel kind of sorry for him. After a few more seconds, he straightened his tie and said, “I guess I’d better go back in there. Can I borrow your skirt?”

  1. Trial Chicken - a day in the life - Trial Theory - Myrtle Beach criminal defense lawyer Bobby G. Frederick on June 16, 2012 at 11:30 am

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