Theory of the Case
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.
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.
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.
1. When arrested, was the defendant warned that he could remain silent and that anything said can and will be used against the defendant?
2. 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?
3. 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:
- 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.