India Criminal Defense Manual - Theory of the Case

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Whether a lawyer chooses to develop a specific defense or simply to rely on the prosecutor's failure to carry the burden of proof, his first step will be to develop a theory of the case. 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). Definition of Theory:

  • Combination of facts and law which logically and emotionally convince the jury that the accused is innocent.
  • More than a legal defense: it’s a plan for presenting the case, the framework for how to shape the law and the facts to get the desired outcome.
  • Follow the simple structure of a story: beginning, middle, and end.

A Theory of the Case consists of three parts: 1. Relevant Law – the law or jury instructions that apply to the issues which arise in the case 2. Facts of the Crime – All the irrefutable facts, including positive and negative facts. 3. Emotional Factors – Emotions usually influence people’s decisions more than logic. Thus, a theory of the case should generate feelings in the factfinder that influence as to how and why a case occurred.

Note: A theory of the case should be distinguished from a theory of the defense. A theory of the defense suggests that there are two versions to the story. A theory of the case is a positive, affirmative statement of what actually occurred and what the law directs should happen to an individual who has been accused in a situation. Try to put forth a case that establishes your client as innocent rather than that there is simply not enough proof to convict him. A factfinder will be less willing to find a defendant innocent if he is portrayed as guilty.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.

Creating a theory of the case

There are three stages to developing a theory of the defense.

Stage 1: Acquisition

Conduct interviews, discovery, and investigation to find all the facts relevant to the case, both positive and negative. Do not judge the facts at this stage of development. Review the indictment or criminal information to determine with what crime the accused is being charged. Check the law of the applicable jurisdiction to determine the essential elements of the crime. Utilize as many sources as are available to discover all you can about your client and the relationships involved in the case.

Common Sources: Police Reports, Witness statements, Private Investigation, Interviews, Public Records, Other Records

Check List

  • Interview eyewitnesses to the alleged crime to obtain their version of the facts.
  • Interview other potential witnesses who may have relevant information regarding the alleged crime, or the character of the accused.
  • Inspect and examine carefully all documents and other materials made available by the prosecution.
  • Examine the scene of the alleged crime.
  • Check to determine if the accused person's constitutional rights were violated.
    • When arrested, was the accused warned that he could remain silent and that anything said can and will be used against the accused?
    • When arrested, was the accused advised that he had the right to an attorney (even if accused 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 accused person's person and/or property? Was there probable cause for any arrest or any search warrant?

Stage 2: Brainstorming

Objectively analyze the facts and the evidence. Think through the dominant emotions of the case and determine which work for and which work against your client. Identify the irrefutable facts and make them part of the defense’s theory. These are facts such as written record, video recordings, some eyewitness accounts, etc. Some facts that seem irrefutable can actually be undermined with further investigation. For example, an eyewitness account seems irrefutable, but if you can prove that the eyewitness had poor vision or was intoxicated, the fact is no longer irrefutable.

Identify the facts that seem to support the defense, those that seem to support the prosecution, and those that are neutral. Anticipate and prepare for the prosecution’s likely course of action: determine how they will make their case, which facts and evidence they will use, and how they will convey neutral facts.

Consider all the possible issues with both your case and that of the prosecution. Think through all the possible defenses that could logically apply.

Consider for example:

  • Is there proof of the client’s presence at the scene?
  • Was a crime actually committed?
  • Is there evidence that the defendant might have been framed?
  • Are the defendant’s actions justified or excusable? i.e. self defense, intoxication, duress, etc.
  • Is the defendant guilty of a lesser charge?

Brainstorm all possible theories, then test them.


Irrefutable Facts Test – Is the theory consistent with all of the irrefutable facts? If not, you may want to consider using a different theory. A listener will not accept a theory inconsistent with facts that they consider irrefutable.

Plausibility Test – Is the theory plausible? Is it internally consistent?

If more than one theory passes this test, choose the theory that best applies to the factfinder’s world view. If, for example, the factfinder is a policeman, a theory that an officer made a mistake is a better choice than a theory suggesting that an officer is lying.

Stage 3: Execution

Select the theory that gives the defendant the best chance to persuade the factfinder in his favor. Choose only one theory: having more than one undermines the defender’s credibility.

Storytelling Methods

During the course of investigation and preparation for trial, the lawyer should gradually build and develop a theory of the case, as well as continually revising it. A theory of the case consists of three parts: the relevant law, facts of the crime and emotional factors. In the court, a lawyer uses a theory of the case to tell the client's story. The storytelling is composed of three parts: the general theory of the case, several supporting sub-theories, and the oral presentation to the court. Varied tones of voice, proper rhythm and tempo in questioning, body language, communication with your eyes, and application of different rhetorical skills make for effective storytelling, creating an atmosphere that both keeps the audience in suspense and engaged and builds a positive environment for the argument of defense. It is in such an environment that the court will evaluate the evidence.

Work Form for Developing a Theory of the Case

Use the following questions to check that your theory of the case is complete, answer these questions:

1. What is your 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?

4. What are the irrefutable facts that you need to confront and explain in the theory of the case?

5. What are the facts in favor of the client? What are the facts against your client?

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 theme to refute these emotional themes?

8. Make a list of the prosecution witnesses with specific questions attached to their names. Briefly point out the questioning styles.

9. Make a list of the defense witnesses, and under each of their names, write out how you plan to question them. Finally, briefly indicate the style of questioning.

10. List your main desired objective when directly questioning the accused. How will the accused's testimony strengthen your theory of the case?

11. Do you need to solve any problems with the evidence? Are these problems likely to strengthen or weaken your theory of the case? How will you explain the evidence that is inconsistent with your theory of the case?

12. Is it concise, logical, emotional, and understandable?

Storytelling: Test your Theory of the case and Themes at Court

To defend your client effectively, the lawyer must understand how to tell a story to the court. The more convincing and touching the story is, the more persuasive the argument becomes to the judge who ultimately decides the facts of the case. Every well-knit story needs a plot, and for a defense argument, a plot provides the best tool for explaining the facts of your theory of the case.

Why must the legal aid lawyer use storytelling methods in the court?

Storytelling allows the legal aid lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case. Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor's argument. Once the legal aid lawyer successful executes a framework, he can use the client's experiences to influence the judges' imagination, leading most judges to understand the evidence in the context of the client's past experiences.

More importantly, storytelling will cause judges to use both their hearts and minds in considering the defense's argument. "One who relies on reason" is more likely to change their judgment, because they often use the following thought pattern to reflect on and analyze a case: "My (the lawyer's) view is based on logic. Therefore, if you (the judge) reasonably point out any flaw in my thinking, I will consider changing my views." In contrast, "one who relies on his heart and emotions" will reflect on and analyze a case in a different way: "I am right, and you are wrong, so you must change your view."


To develop a theory of the case, the legal aid lawyer should objectively evaluate the prosecution's case, and then, in accordance with applicable laws, structure a moving story based on the facts of the crime and emotions that will serve as a rebuttal. The theory of the case will influence the investigation, which witnesses will testify at trial, and what demonstrations will be held in court. Through telling a reasonable and convincing story, the lawyer can persuade the judge to find the client innocent, mitigate his sentence, or exempt him from criminal responsibility.

See India Criminal Defense Manual