Statistically, there’s no effective defense in any criminal law case. Prosecutors have about a 95 percent conviction rate.[1] However, this number is deceptive. Nearly all of these convictions are plea bargains. If a criminal case goes to trial, the conviction rate is much lower, perhaps as low as 50 percent. In both pleas and trials, at least one procedural, substantive, and or/affirmative defense is usually available.

During plea negotiations, a Rochester criminal defense attorney leverages these defenses and obtains more favorable plea bargain terms. These favorable terms usually include reduced charges and/or a reduced sentence. If prosecutors charge Tom with aggravated assault (a felony) and he pleads guilty to simple assault (a misdemeanor), that counts as a conviction. However, in practical terms, that plea bargain is a clear win for Tom. Attorneys also use these defenses during trials. If just one juror buys the defense, the defendant is not guilty as a matter of law.


Over the last several years, the violent crime rate has increased in almost every state. Many lawmakers, especially those who love to pass the buck, have pressured law enforcement agencies to “do something” about this increase. To take this pressure off, many field officers take illegal shortcuts, and many of their supervisors look the other way.

Technicalities, or procedural defenses, are very effective. Once officers make a mistake, they cannot undo it. Furthermore, a technicality allows a Rochester criminal defense lawyer to obtain a favorable result, either at trial or during plea negotiations, without addressing the case’s merits.

The Fourth Amendment protects people from unreasonable searches and seizures. Unless officers had a warrant based on probable cause or a narrow search warrant exception applied, the search was unreasonable, and the evidence is inadmissible in court.

Fourth Amendment issues are often huge in possession cases, like drug and weapons cases. The prosecution crumbles if prosecutors cannot produce the illegal item at trial. Fourth Amendment issues also apply in other cases, most notably DUIs.

The Fifth Amendment gives people the right to remain silent. Most people have watched enough cops-and-robbers TV shows to know this. However, most people don’t know how early this right applies and how broad it is.

Legally, before officers detain and question suspects, they must inform them of their Fifth Amendment rights. “Detention” means the suspect doesn’t feel free to leave. In other words, detention begins long before officers handcuff defendants. Moreover, the Fifth Amendment not only covers the right to not say anything. It gives suspects the right not to do anything. They don’t have to pose for pictures or appear in lineups.


In the aforementioned aggressive enforcement environment, many officers avoid procedural errors. However, they jump the gun and arrest suspects before they have enough evidence to convict them. As a result, a lack of evidence may be the most effective defense in criminal cases.

A lack of evidence is based on the presumption of innocence as well as the burden of proof in criminal cases, which is beyond any reasonable doubt.

At trial, most jurors assume that the defendants did something wrong. So, a Rochester criminal defense attorney must drive home the presumption of innocence. Usually, lawyers stress that when the trial begins, the defendant is falsely accused, as far as the law is concerned. Additionally, after the prosecutor makes an opening argument, no matter how convincing it is, the defendant is still falsely accused. The state hasn’t introduced any evidence at that point.

The presumption of innocence is so powerful that even if a Rochester criminal defense attorney says nothing during a trial, the jury could still acquit the defendant. Therefore, many criminal defense lawyers act somewhat uninterested during trial. This attitude often convinces jurors that the state doesn’t have much evidence.

Beyond a reasonable doubt is a very unclear concept in criminal law. New York courts use the unhelpful definition: “It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”[2] That’s a lot of Legalese which, quite frankly, even we don’t understand.

Sometimes, an example works better. We mentioned DUIs above. Assume Becky is charged with causing a collision while DUI. The “driving” element in a DUI collision is often hard to prove in these cases. If Becky was in the car alone, a space alien could have driven the car and disappeared before the cops arrived, but that’s not a reasonable scenario.

If Becky was in the car with Eddie, jurors could reasonably believe that Eddie was the driver instead of Becky. Indeed, according to the presumption of innocence, that’s the conclusion they must reach unless prosecutors convince them otherwise.

A quick word about circumstantial evidence. This evidence could be enough to convict a defendant. If no one saw Sam break into Mike’s house, yet Sam threatened Mike on social media, and officers recovered Sam’s hair at the crime scene, Sam could be guilty of burglary. That’s assuming the evidence was admissible under the procedural defense rules, and the hair was scientifically reliable. Scientific reliability is a can of worms that we’ll address in another post.


Usually, an affirmative defense is the last line of defense. Defendants must admit that they committed the crime and argue their conduct was justified under the law. Self-defense in an assault or other similar cases and consent in a sexual battery or other similar cases are the two most common examples.

Proportionality is the key element in a self-defense argument. Usually, the response must be proportionate to the threat. However, that’s not always the case. If The Rock threatened me, I might reasonably believe I need a gun to stop him, even if The Rock was unarmed.

Usually, consent is a current, voluntary agreement to engage in a certain sexual act. This defense is quite complicated because many of these cases are “he said, she said.” The burden of proof comes into play as well. A “he said, she said” case might be enough to prove liability in civil court, where the burden of proof is lower. But it’s not enough to prove guilt in a criminal case, where the burden of proof is higher.

There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. Virtual, home, and jail visits are available.





The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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