Theory of the Case

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

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.

A theory of the case consists of the following parts:

  1. The relevant law - The law or jury instructions that apply to the issues which arise in your case.
  2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or say) will be believed by the factfinder as true. These include those facts which you will be able to present (through affidavit, direct examination or cross-examination) which the factfinder would likely accept as true.
  3. Common sense - Ordinary people must believe based on their life experiences that the defense theory of the case is what happened.
  4. Emotional factors - Emotions often motivate more decisions by people than logic. Therefore, a theory of the case should generate feelings in the factfinder as to what, how, and why the case occurred.

Here is how three public defenders have defined the theory of the case:

"That combination of facts and law which in a common sense and emotional way leads the judge to conclude a fellow citizen is wrongfully accused" - Tony Natale, Federal Defender

"The central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial" - Mario Conte

"A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused's acquittal or conviction on lesser charge while telling the defenses story of innocence or reduced culpability" - Vince Aprile

A theory of the case should be distinguished from a theory of the defense. A theory of the defense conveys an attitude that there are two sides or visions. 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.

The theory must be credible and believable. It must be consistent with bad facts and explain away bad facts at the same time. It should be interesting and entertaining. Finally, the theory should be client-centered and driven by the requirements of the factfinder.

A theory of the case is not mistaken identification, self-defense, reasonable doubt, inadequate police investigation or coercion and duress.

Theme of the Case

A theory of the case may also include a theme of the case. A theme of the case is a word, phrase, or simple sentence that captures the controlling or dominant emotion and/or reality of the theory of the case. The case theme must be brief and easily remembered by the jurors. Examples of a theme of the case include:

  • Puppet of Fear
  • Unwilling Participant
  • Forced to Rob
  • Unwilling Accomplice
  • Victim of Fear
  • Two Victims
  • Coerced to Crime
  • Frightened, Forced, and Falsely Accused
  • Frightened, Forced, and Framed

A theme functions to strengthen the defendant's case in several ways. First, the theme repeatedly reinforces your theory of the case in the factfinder's mind. Second, the theme provides an easy catch-word or catch-phrase for the factfinder to use when determining guilt or innocent. The theme enables the defense lawyer to re-orient the factfinder to the theory of the case quickly and easily. A theme also forces the prosecution to argue against your theory rather than simply arguing their own case. Finally, the theme brings a vivid image and emotion to the factfinder every time it is used. These themes can be used in every facet of the case: motions, negotiations, opening statements, direct examinations, objections, closing arguments, instructions, post-verdict motions, sentencing, and dealing with the media.

Benefits of the Theory of the Case

A theory of the case benefits and drives all other aspects of the defense. For instance, a theory of the case:

  • Directs pre-trial motion practices
  • Focuses and prioritizes voir dire questions
  • Functions as a mini opening statement
  • Measures the prejudice of prosecutorial actions
  • Creates parameters for the scope of cross-examination
  • Places all witnesses in the defense context
  • Reveals the appropriate attitude for cross-examining each witness
  • Organizes the presentation of the defense case
  • Serves as a checklist for eliciting essential information from defense witnesses
  • Dictates the essential defense instructions and reveals inappropriate instructions
  • Identifies and prioritizes issues for opening statements and closing arguments

Creating a Theory of the Case

Stage One - Acquisition

Learn as much as possible about the individual facts of the case. Gather all information, even if it appears to be harmful or irrelevant to the defense. Clearly harmful information is as important or more important than any other information.

Stage Two - Brainstorming

Objectively analyze the facts and the evidence in the case. Identify the facts that are likely to reach the listener. Try to determine how the government will make its case. What evidence does the government have? How will the government address the neutral facts? By anticipating the government's case you can prepare for it.

Often, there are certain facts in a case that a listener will believe to be true no matter what you do or say. You should identify these facts and make the facts part of your theory. Be creative, think of all the possible case theories you could use based on the evidence you have gathered. Start by examining all of the possible defenses for the offense your client is charged with.

When you brainstorm consider if a witness can identify your client at the scene. Can the government prove the client was at the scene? Is there any evidence that your client was framed? Did the crime actually occur? Are your client's actions justified or excusable? For example, was the client acting in self-defense or under duress? Is your client guilty of a lesser charge? Think through all of the possibilities before choosing a defense.

After brainstorming all the possible theories, subject each theory to two tests. First, the facts beyond change test. Is the theory consistent with of the facts beyond change? If there are any facts inconsistent with you theory you may want to choose a different theory. The listener will not accept a theory that is inconsistent with a fact that the listener believer to be true. Second, the plausibility test. Is the theory plausible? Is the theory internally consistent? Does the theory sound like the truth? If more than one theory passes both tests, choose the theory that best applies to the listener's world view. For example, if the listener has a police background, a theory that a police officer made a mistake is a better choice than a theory suggesting that the police office is lying.

Stage Three - Execution

Select the theory that gives your client the best chance to achieve the client's desired result. Only choose one theory. Having more than one theory will undermine your credibility. We suggest that you pick a theory that presents an affirmative picture of your client's innocence.

Your final theory of the case should have persuasive facts, strong emotions, a legal basis for the listener to find your client innocent, vivid imagery, and concrete language.

Your final theory of the case should be client-centered, listener driven, and a compelling and believable story.

View the listener as a member of an adult education class. You are the teacher and you must teach the listener your theory. You can teach the listener through demonstrative or physical evidence, visual displays, re-enactments, and analogies.

Plan your case in reverse. Start at the end. If you are appearing before a jury, draft jury instructions tailored to your theory. In drafting the instructions, consider the law underlying your theory.

Draft your closing argument based on the evidence that led you to select the theory. Explain and support your theory while arguing against the government's theory.

During cross examination, your goal should not be to discover new facts. Ask questions about facts that you know will support your theory. If a line of questions does not advance your theory, do not use it.

Use the opening statement to introduce your theory to the listener.

Factual Component

When finalizing your theory of the case remember to include the most important facts, good, bad, and indifferent.

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 Component

Include the legal strategies and phrases you will use during the trial. Include the elements of the crime charged. 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.

Emotional Component

Include the emotions of the scene. Put the listener in the defendant's position.

Vocabulary of the Case

Use the vocabulary of the case in your theory. This, internal vocabulary, comes from the documents of the case such as police reports, witness statements, official records, and personal documents. The vocabulary of the case also comes from the testimony of the witnesses. External vocabularies are the words you are able to get witnesses to use. Make the witness use vivid synonyms. External vocabulary must come from the witness and should not be over-dramatized. External vocabulary should be consistent and credible with the normal vocabulary of the witness.


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 defense lawyer successfully executes a framework, he can use the client's experiences to influence the judge's imagination, leading most judges to understand the evidence in the context of the client's past experiences. More importantly, storytelling will cause judges to uyse both their hearts and minds in considering the defense's argument.

The following suggestions may help the lawyer decide what language to use or avoid in stating a theory of the case on behalf of a client:

  • The language of storytelling and the language the lawyer normally uses are very different. The lawyer should tell the story as if he is casually speaking with friends.
  • Speak accurately. What you actually saw should match what you intend to say.
  • Translate legal terms or abstract concepts into clear, common, and simple language.
  • Use effective language.
    • Avoid words or phrases with reserved meaning, for example "I think," "I believe," or "I will try to prove."
    • Use active tense.
    • Avoid unconscious hesitation or useless verb pauses.
    • Use language that has the appropriate emotional and appealing elements.
    • Use vivid language.
    • Use concrete rather than abstract language.
    • Use detailed and accurate rather than general or vague language.
  • There should be sentence variety, but short sentences are best.
  • Do not refer to notes while speaking.


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 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). 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 defense 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 Trial

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