Features of a strong defense theory
The theory of the defense case in a criminal trial should be more than just the legal pigeonhole into which the defense fits (e.g., self-defense, alibi, or reasonable doubt). Instead, the theory must be a narrative or argument that accounts for the indisputable evidence and leads the jury to conclude that the just result is to acquit. A strong defense case theory will shift the focus to the prosecution’s case and its witnesses, and tell a story of how that case cheats the jury by depriving it of the evidence needed to decide the case fairly (such as forensic evidence); or insults the jurors’ common sense or sense of fair play by asking them to rely on tainted and biased witnesses, such as uncorroborated accomplices or informants. Ideally, the theory should not sound apologetic, but should resonate in themes and stories of injustice shared by the community. The defense theory should generate and rest on themes, which are phrases or words that the criminal defense attorney can harp on in questions and argument (e.g., “mere presence / merely present”). The theory should be all-encompassing and consistent. While inconsistent defenses are theoretically possible, they do not work in a criminal trial.
The theory guides the criminal trial
A knowledgeable criminal defense attorney will start formulating the defense theory when he first meets the defendant, and refine or even discard it in favor of another the facts and evidence are developed, revealing the strengths and weaknesses of the theory. The defense theory guides drives the case, both before and during the trial. The goal of a criminal defense attorney is not to score as many points as possible, but to convincingly make those points which advance the defense theory.
If the defense in a drug conspiracy case is that the defendant unknowingly accompanied a friend to the deal (or, in the words of the typical jury instruction, “mere presence”), then the defense attorney usually should not attack the credibility of an informant who damns the alleged coconspirators, but never met the defendant before the day of the arrest. A better strategy is gently elicit from the informant concessions about the defendant’s non-involvement (mere presence). For example: Q. Leading up to January 22, you had three meetings with various individuals about the deal that took place on that day? Q. And we’ve heard played 17 telephone conversations you had with those individuals? Q. And other brief ones that weren’t recorded? Q. My client was not present at any of those meetings? Q. Or on any of those calls? Q. In fact, no one even mentioned his name? Q. You never met my client before January 22. Q. On January 22, he did nothing? Q. And said nothing? Q. You did not see him with any drugs? Q. Or scales? Q. Or beepers? Q. And certainly not with a weapon?
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