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1UNIVERSIDAD NACIONAL DEL SANTA

LANGUAGE CENTER

STUDENT

: FREDDY JOVALDO ROJAS SNCHEZ

CYCLE

: XIV CONVERSATION

CHIMBOTE - PER
2015
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Introduction:
Whether a lawyer chooses to develop a specific defense or simply to rely on the
prosecutor's failure to carry the burden of proof, his first step will be 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). Definition of Theory:
Combination of facts and law which logically and emotionally convince the judge
or the jury.
More than a legal defense: its a plan for presenting the case, the framework for
how to shape the law and the facts to get the desired outcome.
Follow the simple structure of a story: beginning, middle, and end.
The theory of the case can be understood in two ways: a) As a method; b) As an
argumentative construction about a particular case.
It is a method that is developed guidelines for designing an argumentative construction of
a case, to be presented within a trial. It is a method involving various stages, since it is
aware of the fact until the investigation and final court filing. Moreover, as a result, the
theory of the case is the argumentative construction of a particular case. Once applied the
method to a particular fact, we have the theory of the case on this fact.
A Theory of the Case, under the American form, consists of the following parts:
1. The relevant law:
The law that apply to the issues which arise in your case.
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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.
For the countries of the Roman system:
1. Facts:
The facts of the case which have been informed and are the basis for raising your
argument. These have since they were known, until changed by the investigation and
finally proven that can support an allegation of fact rebuilt.
2. Law:
The rule or set of rules applicable to the case, which supports the judicial interpretation
and the legal basis for the claim.
3. Evidence:
The evidence in the case to allow checking the facts of the investigation.
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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 suggests that there are two versions to the story. 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. Try to put forth a case that establishes
your client as innocent rather than that there is simply not enough proof to convict him. A
factfinder will be less willing to find a defendant innocent if he is portrayed as guilty. 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.
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
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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
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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
Development of the theory of case:

1. First contact whit the case:

When you take the first contact with the case only have assumptions about what may have
happened.
The account of the facts and assumptions used to establish lines of research and
preliminary assumptions to discard.
An initial gathering of relevant research, can decide on the case preliminarily options.
The skillful use of the law and legal theory at this stage is crucial.
2. Formalization of the case:

This step serves to look for evidence of your theory of the case. Evidence that you find
may serve as both try to destroy your opponents theory.

In the same way, being the most advanced of evidence obtained degree, the choices you
have if, as continuing the defense of innocence or find alternative outlets such as
mediation, early termination, the principle of opportunity, etc. can be evaluated
At this stage the skillful handling of test theory and constitutional rights are transcendental
3. Allegation as trial:
At this stage you have to test the theory of the case. You can also discredit the theory of
the case of your opponent. In scenario in which it develops is itself on trial, where first you
have to make opening statements, where evidence is presented to the judge by the
argument, then you have to contrast the evidence with the arguments and evidence against
the opponent and finally conclude make closing arguments, with a conclusion on all
proceedings and whether you could prove your theory of the case or to discredit the
opponent. In both cases, your victory is assured.
This part is transcendental knowledge on oral litigation, interrogation techniques, proof
theory and the theory of law.
Creating a theory of the case
There are three stages to developing a theory of the defense.
Stage 1: Acquisition
Conduct interviews, discovery, and investigation to find all the facts relevant to the case,
both positive and negative. Do not judge the facts at this stage of development. 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. Utilize as many sources as are available to discover all you can about your
client and the relationships involved in the case.
Common Sources: Police Reports, Witness statements, Private Investigation, Interviews,
Public Records, Other Records.
Check List:

Interview eyewitnesses to the alleged crime to obtain their version of the facts.
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.
Examine the scene of the alleged crime.

Check to determine if the accused person'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 person's person and/or
property? Was there probable cause for any arrest or any search warrant?
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Stage 2: Brainstorming
Objectively analyze the facts and the evidence. Think through the dominant emotions of
the case and determine which work for and which work against your client. Identify the
irrefutable facts and make them part of the defenses theory. These are facts such as written
record, video recordings, some eyewitness accounts, etc. Some facts that seem irrefutable
can actually be undermined with further investigation. For example, an eyewitness account
seems irrefutable, but if you can prove that the eyewitness had poor vision or was
intoxicated, the fact is no longer irrefutable.
Identify the facts that seem to support the defense, those that seem to support the
prosecution, and those that are neutral. Anticipate and prepare for the prosecutions likely
course of action: determine how they will make their case, which facts and evidence they
will use, and how they will convey neutral facts.
Consider all the possible issues with both your case and that of the prosecution. Think
through all the possible defenses that could logically apply.
Consider for example:
Is there proof of the clients presence at the scene?
Was a crime actually committed?
Is there evidence that the defendant might have been framed?
Are the defendants actions justified or excusable? i.e. self defense, intoxication,
duress, etc.
Is the defendant guilty of a lesser charge?
Brainstorm all possible theories, then test them.
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Tests:
Irrefutable Facts Test:
Is the theory consistent with all of the irrefutable facts? If not, you may want to consider
using a different theory. A listener will not accept a theory inconsistent with facts that they
consider irrefutable.
Plausibility Test:
Is the theory plausible? Is it internally consistent?
If more than one theory passes this test, choose the theory that best applies to the
factfinders world view. If, for example, the factfinder is a policeman, a theory that an
officer made a mistake is a better choice than a theory suggesting that an officer is lying.
Stage 3: Execution:
Select the theory that gives the defendant the best chance to persuade the factfinder in his
favor. Choose only one theory: having more than one undermines the defenders
credibility.
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
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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.
Work Form for Developing a Theory of the Case:
Use the following questions to check that your theory of the case is complete, answer these
questions:
1. What is your theory of the case?
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 irrefutable facts that you need to confront and explain in the theory of the
case?
5. What are the facts in favor of the client? What are the facts against your 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. 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?
12. Is it concise, logical, emotional, and understandable?
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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."
Legal Component:

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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.

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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.
o Avoid words or phrases with reserved meaning, for example "I think," "I
believe," or "I will try to prove."
o Use active tense.
o Avoid unconscious hesitation or useless verb pauses.
o Use language that has the appropriate emotional and appealing elements.
o Use vivid language.
o Use concrete rather than abstract language.
o 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.
Features:
Simplicity.
Logic.
Legal sufficiency.
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Flexibility.

Utility:
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Conduct a strategic analysis of the case.

Order and classify the case information.

To adapt the facts to the law and defend your case.

Determine which is what we expect of research.

Select the relevant evidence.

Identify the weaknesses of your case.

Identify the weakness of the opponent case.

Conclusion:
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.

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