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.
There are two types of legal defenses: