Difference between revisions of "Theory of the Case"

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The basic requirement in preparing a defense is to develop a theory of the case. Of course it is necessary to research the law and to identify the elements of each charge. It is also important to go over the prosecution's evidence carefully to see if there is evidence of each element. But a well thought out theory of the case enables the defender to ask the right questions and look for the right evidence to prepare for trial.  
 
The basic requirement in preparing a defense is to develop a theory of the case. Of course it is necessary to research the law and to identify the elements of each charge. It is also important to go over the prosecution's evidence carefully to see if there is evidence of each element. But a well thought out theory of the case enables the defender to ask the right questions and look for the right evidence to prepare for trial.  
 
== Creating a Theory of Defense ==
 
== 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.   
+
'''Step One''' - 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:
+
'''Step Two''' - The second step is to thoroughly investigate the facts of the case:
 
* Interview the defendant as to his version of the facts.
 
* 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 eyewitnesses to the alleged crime to obtain their version of the facts.   
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**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?
 
**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?
 
**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:
+
'''Step Three''' - 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 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
 
* Identify the witnesses you will need to establish those facts

Revision as of 14:38, 4 June 2010

Background

The basic requirement in preparing a defense is to develop a theory of the case. Of course it is necessary to research the law and to identify the elements of each charge. It is also important to go over the prosecution's evidence carefully to see if there is evidence of each element. But a well thought out theory of the case enables the defender to ask the right questions and look for the right evidence to prepare for trial.

Creating a Theory of Defense

Step One - 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.

Step Two - 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?

Step Three - 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.

Three Aspects

The theory of the case is a combination of fact and law, which in an emotional and common-sense way, will lead the court to conclude that the citizen has been inaccurately accused or too severely punished. It is necessary to convince the court by presenting a series of facts and laws. That means we are engaged in a quest for accurate information. What makes something accurate? In criminal defense, we have to look at both the concrete reality of the case and the law. There are three aspects: physical, legal, and psychological.

Physical Aspects

Did the events physically occur the way the prosecution claims? What if a police report says "this and that happened," but the scene appears to make that particular sequence of events impossible? Sometimes the defender may think something does not make sense, and only when visiting the scene of the alleged crime does it become clear that what is written in the report is not the whole story. Going physically to the locations and acting out the events (in imagination) may give additional clues. It is particularly useful to physically go to where the witnesses were standing or sitting to see whether it would have been physically possible to see what they claim to have seen.

When developing a theory of the case to explain a conflict or criminal act, the defender should ask:

  • What happened?
  • What did they do, feel, want?
  • What is the relationship between the parties involved?
  • What are the physical particularities?
  • What are the legal elements of the case?

Legal Aspects

The legal aspects of developing the case theory require the defender to determine which facts have significance legally. Not every fact matters. The prosecution's case is based on proving the elements of a crime. What are those elements? Make a list. Go through it step by step to see if there is evidence that supports each element (that is, evidence that favors the prosecution), and in the defense investigation look for evidence to rebut, or counter, each element.

Example. If the law says that a mentally ill person is not responsible, then an element of the crime is that the person was mentally responsible at the time of the criminal act. The prosecution may not have developed evidence on this point. To rebut any presumption of mental responsibility, check the mental state of the accused person; get the opinion of doctors and psychologists, if necessary.

For each element, list the evidence in support and the evidence rebutting the element. If there is little or no evidence in the case file to rebut an element, then part of the defense investigation is to look for such evidence.

Psychological Aspects

The psychological aspect of the theory of the case answers the question: what would be going through the minds of those involved in the event if the event occurred the way the prosecution says it occurred? The defender should try to be in the mind of the victim as well as in the mind of the accused. Look at the event from both sides, put it into perspective, look at the whole story. Look for possible confusion, reactions.

Example. A punch (hitting a person with physical consequences) can mean different things according to the context: what exactly happened around it? What if the victim carried a knife? What if the victim was drunk? What if the victim had been arrested and convicted of violence before? What if the victim threatened the accused? What if the accused had never been himself in trouble before?

Imagining what was in the minds of those involved in the event may suggest a different, opposing version of the prosecution case. If two different "stories" or "scenarios" seem to exist, the defense investigation should be directed at gathering additional information. The defender's job is to find out the whole picture, the facts, including what happened before the event that gives meaning to the act that is said to be criminal. A complete theory of the case is not possible until the investigation is finished, but the defender's initial or tentative theory reveals the areas where the defense should investigate and interview.

In developing the defense theory of the case, it may be helpful to think of newspaper headlines. A newspaper's headlines give in a nutshell the essence of the story. The defender's theory of defence has to be like the headline of a newspaper, the headline for the story of the defense case. Make a headline of the case: "Frightened man punches someone attacking him with knife."

It is commonly known that when there is a car accident , often the witnesses have different pictures of what happened. It is the same with a defender who argues "self-defense" on behalf of the accused: everyone has different ideas about what self-defense might be. The defense needs facts to develop the defense story, a story that grows out of the defense theory of the case. A summary of the theory is the headline of the story. Make a headline that gives everyone the same picture. The headline must convey the picture the defense wants the judge to see.

Conclusion

Whether defense counsel 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.

Anyone handling a defense understands that it is necessary to look at the most obvious aspects. But it is also important to consider the facts beyond the obvious. It is the job of the defence to point out the whole picture, beyond the first glance, the most obvious. Developing the theory of the case points the directions for investigation, and the investigation is likely to uncover information that further develops the theory of the case.


See Also