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Trial Skills: The Theory of Defense

By Aaron Nelson

Criminal defense begins and ends with the “theory of defense.” Several great attorneys have attempted to define this idea. For example, according to Tony Natale, a theory of defense is:

“That combination of facts (beyond change) and law which in a common sense and emotional way leads a jury to conclude a fellow citizen is wrongfully accused.”

Mario Conte defines it as:

“One central theory that organizes all facts, reasons, and arguments and furnishes the basic position from which one determines every action in the trial.”

Finally, Vince Aprile describes it as:

“A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused acquittal or conviction on a lesser charge while telling the defense’s story of innocence or reduces culpability.”

Nelson Defense Group believes that a theory of defense has three essential parts:

– Factual component
– Legal component
– Emotional component

Trial lawyers convey the emotional component through themes and archetypes. Most theories have both primary and secondary themes. Primary themes are words, phrases or simple sentences that capture the controlling or dominant emotion of the theory of defense. On the other hand, secondary themes describe or label a more specific aspect of the case.

Archetypes are an efficient method for conveying emotional themes. One dictionary defines archetypes as “images, patterns, and symbols that rise out of the collective unconscious and appear in dreams, mythology, and fairy tales.”

Attorney Stephen Lindsay more succinctly describes archetypes as “fundamental corollaries of life which transcend age, ethnicity, gender, and sex. They are truths that virtually all people in all walks of life can agree upon.”

After collecting discovery (the evidence the State will try to use against you), completing investigation and developing a theory of defense, the next step is to figure out whether your witnesses align with an archetypal character that can drive your story forward.

As my mentor and hero, attorney Keith Belzer, has previously written:

“Every witness that testifies stands for something larger than the mere words on the page or in the courtroom. Every witness has motivations and biases that would form the background of their existence if they were written as characters. By finding these archetypal meanings we create a story that is more palpable, has more depth, and is more interesting. All towards driving forward the story of innocence.”