Difference between revisions of "Theory of the Case"

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== Background ==
 
== 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.
+
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.
== 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:
+
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.
* 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.
+
A theory of the case consists of the following parts:
 +
#'''The relevant law''' - The law or jury instructions that apply to the issues which arise in your case.
 +
#'''The facts of the [[crimes | 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.
 +
#'''Common sense''' - Ordinary people must believe based on their life experiences that the defense theory of the case is what happened.
 +
#'''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.
  
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.
+
Here is how three public defenders have defined the theory of the case:
  
==Physical Aspects==
+
<blockquote> "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 </blockquote>
 +
<blockquote>"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</blockquote>
 +
<blockquote>"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</blockquote>
  
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.
+
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 | 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 classYou 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:
 
When developing a theory of the case to explain a conflict or criminal act, the defender should ask:
Line 38: Line 92:
 
* What are the legal elements of the case?
 
* What are the legal elements of the case?
  
==Legal Aspects==
+
===Legal Component===
  
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.  
+
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.
  
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.
+
===Emotional Component===
  
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.
+
Include the emotions of the scene.  Put the listener in the defendant's position.
  
==Psychological Aspects==
+
===Vocabulary of the Case===
  
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.  
+
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.
  
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?
+
== Storytelling==
 +
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.
  
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.
+
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.
  
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."
+
==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 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.
  
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.
+
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.
  
==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.
+
See [[Trial]]
  
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.
+
----
 +
{{Languages|Theory of the Case}}

Latest revision as of 11:35, 14 July 2011

Background

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

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.

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 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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