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, 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.

Creating a theory of the case

The first step in creating a theory of the case is to 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.

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

  • 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 accused.
  • 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 accused'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'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 accused 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 accused's alibi is a close personal friend with a motive to lie)
  • No matter what strategy seems best, the lawyer should always emphasize the heavy burden that the prosecution bears. An accused 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.

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.


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.

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.

Work Form for Developing a Theory of the Case

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?

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?

5. What are the facts in favor of the 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. What further investigation do you need to do to complete your theory of the case?

12. 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?

13. Make a brief, effective statement for your theory of the case.

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