Human Asset vs Physical or Digital Asset Cases

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

No case is cookie-cutter, and no two cases are alike, including your client's background. However, there are some cases that fall into general categories, which may guide the timing of the case and the types of discovery.

One major category involves the distinction between what I describe as "human asset" versus "physical asset" or "digital asset" cases. In "human asset" cases, from a defense perspective, the major obstacle you need to overcome are witnesses (typically percipient witnesses, complaining witnesses, or a reporting party) who are expected to provide testimony against your client. In "physical asset" or "digital asset" cases, you're principally up against hard or real evidence (such as a weapon with fingerprints on it) or electronic evidence (such as images, videos, cell phone data, text messages, etc.).

This distinction is important because an attorney should consider treating the timing of these cases differently. For example, in physical or digital asset cases, the evidence -- assuming it has been collected and preserved by law enforcement -- is the elephant in the room. You need to deal with it, and often the sooner the better. Depending on what was obtained, this might guide your defense theory, your discovery requests (i.e., the additional discovery you request from the prosecution), and whether you hire an expert (and the type of expert). Thus, you need to deal with this evidence sooner rather than later. It's not going away. You also need to know what the prosecution possesses, which guides your own defense investigative efforts.

In "human asset" cases, the defense strategy is often more nuanced. For example, with cases involving a minor, it is often difficult to obtain the interview of the minor without the parent's permission (and it is the parent who often rightfully controls access). Thus, depending on the age of the minor, the attorney may patiently let the case mature in order to open up this option for the witness to reach the age of majority (i.e., 18-or-over adult status). While this might seem cynical, it is not. In many cases, a minor is the major complaining witness against your client.

There are other examples, including in "he-said-she-said" or "she said-he-said" situations in which the state's case depends nearly entirely on the testimony of a single witness. In this situation, letting a case mature may also serve several purposes. It is possible that a witness eventually realizes that they misperceived the situation and regrets their original statement. The number of factors or variables is too complex to analyze in a blog, but the point is that the distinction is relevant.

When your attorney approaches a particular case in a way that doesn't seem to recognize the type or category of case, then ask him or her whether moving as quickly as possible is best, or whether a more circumspect approach is preferred in which the best defense strategy is to wait to see how the case develops. Of course, many or most cases are a combination of the two categories, but the analysis then turns on what evidence presents the greatest potential threat to the outcome of your matter. This, too, needs thoughtful consideration by an experienced advocate.