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Knowledge of various defenses to crimes is crucial so that the criminal defense attorney can accurately formulate a theory of the case. This section provides information on theoretical defenses available around the globe and also provides a guide that will enable the defense attorney to select the best defense possible for their client.


Creating a Theory of Defense

The first step in creating a theory of defense is to review the indictment or criminal information to determine with what crime the defendant is being charged. Check the law of the applicable jurisdiction to determine the essential elements of the crime.

The second step is to thoroughly investigate the facts of the case:

  • Interview the defendant as to his version of the facts.
  • If possible, interview eyewitnesses to the alleged crime to obtain their version of the facts.
  • If possible, interview other potential witnesses who may have relevant information regarding the alleged crime, or the character of the defendant.
  • Inspect and examine carefully all documents and other materials made available by the prosecution.
  • If applicable, examine the scene of the alleged crime.
  • Check to determine if the defendant's constitutional rights were violated.

When arrested, was the defendant warned that he could remain silent and that anything said can and will be used against the defendant? When arrested, was the defendant advised that he had the right to an attorney (even if defendant could not afford an attorney) and that the attorney could be present during any interrogation by the government? Was there an unreasonable search and seizure of defendant's person and/or property? Was there probable cause for any arrest or any search warrant?

The third step is to determine how you will go about developing your defense in the courtroom:

  • Identify the facts you will need to establish (e.g., eyewitness has poor eyesight or the defendant has an alibi).
  • Identify the witnesses you will need to establish those facts
  • Determine whether the prosecution's witnesses' have significant credibility issues.
  • Visit the scene of the crime to verify, for example, that an eyewitness could not possibly have seen the crime from where he was located.
  • Identify any facts that undercut your theory (e.g., the defendant's alibi is a close personal friend with a motive to lie)

No matter what strategy seems best, defense counsel should always emphasize for the jury the heavy burden that the prosecution bears.

A defendant is entitled to raise "inconsistent defenses" so long as the proof of one does not necessarily disprove the other. For example, the defenses of insanity and self-defense, intoxication and non-involvement, insanity and alibi, which defenses are inconsistent, may be raised since proof of one does not disprove the other.

Defense Strategies

In the process of developing a theory of the case, a defense lawyer shall decide whether it is possible to exonerate the client from guilt. If so, he should further consider how to prove the innocence of the client at trial. The following are possible defenses for exonerating an accused from criminal liability.

Has the prosecution borne the burden of proof? Remember that your client is entitled to the right og being innocent until proven guilty. No person shall be found guilty without being judged as such by the court according to the law. It is the prosecution's duty to prove that the client is guilty of the charges against him. It means that the prosecution must prove that the facts are clear and the evidence is sufficient.

Before forming other defenses the lawyer should critically scrutinize the bill of prosecution to confirm whether the alleged crime has already occurred or not. If it has occurred, further consider whether the prosecution has presented evidence sufficient enough to support the charge. Consider whether another charge (a lighter charge) fits better with the case evidence. The following are necessary questions to consider:

What are the elements of the accused offence? For example:

  • Self-driven act: Did the client act from his own free will? What evidence has the prosecution presented to prove that the client acted of his own accord?
  • State of mind: Under what state of mind would the client's act constitute a crime (ex: intentionality, negligence, disregard of the outcome)? What evidence has the prosecution presented to prove that the client in his actions had the requisite criminal intent, had specific knowledge or skill necessary for committing the act or was criminally negligent?
  • Cause and effect: Did the client's act result in the ultimate injury?
  • Direct cause: Were the client's actions far enough from the charged crime that he should not be subject to any criminal responsibility?
  • Legal obligation: Does the law stipulate that the client must act in specific ways to exercise his distinctive legal obligation?

What laws define the elements of a crime? Are these laws contradictory with each other?

How much evidence must be presented in order to sufficiently meet all the required elements of the accused crime? What are the elements of the crime that the client should have been charged with, but was not?

Does the evidence presented meet the evidence requirements for all the elements of the alleged offence? What are the legal stipulations regarding evidence for elements of the accused crime? What evidence supports the prosecution's case? What evidence is not consistent with the prosecution's argument?

If the prosecutor cannot present sufficient evidence to support the charged offence or even support a lighter offence, the defense lawyer shall point out the insufficiency of evidence to the court and request that the court either judge the client as innocent or dismiss the charges.

Has the statutory time limit for criminal prosecution expired?

Is it possible to make an affirmative defense if the facts of the crime cannot be denied? In an affirmative defense, counsel does not deny the elements of the alleged offense but still attempts to prove the innocence of the accused. Such a defense requires counsel to present sufficient evidence, including witness testimony or material evidence. Even if the lawyer does not deny that the accused committed the alleged acts, the defense will try to prove that the acts were justified or provide another legal defense for negating the accused's criminal liability.

Can the defense lawyer prove the innocence of the accused? This is one type of affirmative defense and aims to prove that the accused did not commit the crime, i.e. that the accused could not possibly have committed the alleged offense. The two most common methods of proving the accused innocent are:

  • Proving the accused's alibi
  • Using the material evidence to prove that the alleged offense could not have happened.

In employing the first strategy, the lawyer can provide credible evidence, such as the testimony of a witness at the scene to prove an alibi; if adopting the second strategy, the legal aid lawyer can cite credible evidence demonstrating the weaknesses of the material evidence against the accused, and explain how these limitations or weaknesses exclude the possibility of the alleged offense. For example, suppose the accused was accused of stabbing the victim, and the evidence provided by the prosecutor indicates that the victim was stabbed by an assailant who used his right hand. In such circumstances, if the criminal legal aid lawyer can provide credible evidence to prove that the accused's right hand was previously injured and that he could not have used it at the time that the crime was committed; this demonstrates that the accused could not have committed the alleged offense.

Can the defense lawyer justify the crime committed by the accused? Justifying the crime for the accused is another type of affirmative defense wherein the accused does not deny the alleged offense, but argues that he should not bear legal responsibility for it. Counsel is arguing that the accused committed the alleged offense for justified causes that are socially accepted or that conform to moral principles.

Is there anyone else who should take more responsibility than the client for the alleged offense? Does the accused have any other jointly accused persons? If so, the counsel must investigate the concrete role of every co-accused to determine the actual role of the client. The lawyer needs to pay particular attention to joint crimes.

  • Was your client the ringleader in the course of the crime?
  • Did your client organize, plot, or direct/lead the criminal group or other jointly accused persons?
  • Was your client playing an important role in the course of joint crimes?
  • Did your client instigate others to commit a crime?
  • Did your client play a secondary role in the course of preparation and commission of the crime?

Is your client eligible for a lighter or mitigated punishment? The court can be allowed to give the accused a mitigated punishment or exempt him/her from punishment under some circumstances according to the relevant laws. The lawyer can still seek a mitigated punishment for the client even if there are no statutory specifications on mitigation. Points of evidence that may help this:

  • The accused does not have a long-term criminal record
  • The accused has expressed sincere remorse and self-examination for having participated in the crime
  • The accused has compensated the victim fro all his/her losses
  • The accused is still a minor and also wants to continue schooling; his school also allows him to continue enrollment.
  • The accused needs to take care of elderly and young household members.
  • The accused is developmentally disabled and cannot sensibly make judgments, and is thus easily taken advantage of by others.
  • The accused had a difficult childhood( for example, he was ill-treated at home) that has affected his long-term personal development.
  • The accused has had to overcome great hardships t hat have tested his limits and abilities as a person( for instance, domestic violence, drug addiction)
  • The accused has good work experience or educational background, or has made significant contributions to society
  • Any other mitigating circumstances about the accused. The defense lawyer should think of any means to describe the accused as pitiable and condonable.

In order to discover these points of evidence for a mitigated punishment, the defense lawyer must win the trust of the client, his family members, and other important persons in his life. The evidence for a mitigated punishment must form an important part of the theory of the case. When presenting this evidence in court, the lawyer does not need to conceal his own feelings. His objective is for the court to see his client's more humane side and thereby to give him the opportunity for reform.

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