Difference between revisions of "India Criminal Defense Manual - Theory of the Case"
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| − | == | + | == Introduction == |
Whether a lawyer chooses to develop a specific defense or simply to rely on the prosecutor's failure to carry the burden of proof, he must begin early on to develop a theory of the defense. Some defenses are directed at a failure of proof (e.g. alibi or consent) whereas others are more general and are applicable even if all the elements of the crime are proved (e.g. self- defense, insanity, entrapment). The approach you take will determine many subsequent actions. In addition, in some states the defense must give notice to the prosecutor that a specific defense is being asserted.This is often true, for example, of the alibi defense. | Whether a lawyer chooses to develop a specific defense or simply to rely on the prosecutor's failure to carry the burden of proof, he must begin early on to develop a theory of the defense. Some defenses are directed at a failure of proof (e.g. alibi or consent) whereas others are more general and are applicable even if all the elements of the crime are proved (e.g. self- defense, insanity, entrapment). The approach you take will determine many subsequent actions. In addition, in some states the defense must give notice to the prosecutor that a specific defense is being asserted.This is often true, for example, of the alibi defense. | ||
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== EXECUTION == | == EXECUTION == | ||
| − | 1. A lawyer should build a general theory of the case centered on the | + | 1. A lawyer should build a general theory of the case centered on the client's best interests and based upon the actual situation, which will help him evaluate what choices to make throughout the defense process. |
| − | client's best interests and based upon the actual situation, which will | + | |
| − | help him evaluate what choices to make throughout the defense | + | 2. Counsel should allow the theory of the case to guide his focus during the investigation and trial preparation process. Counsel should dig into and expand upon the facts and evidence supporting his theory of the case. Nevertheless, the counsel should not become a "prisoner" to his theory of the case. |
| − | process. | + | |
| − | 2. Counsel should allow the theory of the case to guide his focus during | + | == Work Form for Developing a Theory of the Case == |
| − | the investigation and trial preparation process. Counsel should dig | + | |
| − | into and expand upon the facts and evidence supporting his theory of | + | The following questions may help a legal aid lawyer to build a complete and coherent theory of the case: |
| − | the case. Nevertheless, the counsel should not become a "prisoner" to | + | |
| − | his theory of the case. | + | 1. What is your theory of the case? (e.g. innocence, alibi witness, misidentification) |
| − | + | ||
| − | The following questions may help a legal aid lawyer to build a complete | ||
| − | and coherent theory of the case: | ||
| − | 1. What is your theory of the case? (e.g. innocence, alibi witness, | ||
| − | misidentification) | ||
2. Why do you believe this is the best theory of the case? | 2. Why do you believe this is the best theory of the case? | ||
| − | 3. What is the relevant law? What are the elements of the offense? How | + | |
| − | will your theory of the case prove the client's innocence? | + | 3. What is the relevant law? What are the elements of the offense? How will your theory of the case prove the client's innocence? |
| − | 4. What are the unalterable facts that you need to confront and explain | + | |
| − | in the theory of the case? | + | 4. What are the unalterable facts that you need to confront and explain in the theory of the case? |
| + | |||
5. What are the facts in favor of the client? | 5. What are the facts in favor of the client? | ||
| + | |||
6. What is the key emotional theme in the case? | 6. What is the key emotional theme in the case? | ||
| − | 7. What emotional themes is the prosecutor most likely to use in his | + | |
| − | argument? How will you use your theory of the case and emotional | + | 7. What emotional themes is the prosecutor most likely to use in his argument? How will you use your theory of the case and emotional theme to refute these emotional themes? |
| − | theme to refute these emotional themes? | ||
