The Three Basic Criminal Defense Theories

criminal defense theoriesWhile there are unlimited stories to be told in a criminal case, there is only a handful of criminal defense theories.

Some Other Guy/Gal Did It

This criminal defense theory is pretty self-explanatory. What the witnesses are saying is true except they got the wrong guy/gal. They may be lying. They may be confused. But whatever the case may be the wrong man/woman is sitting at the defense table. There are two typical ways to develop this defense.

-Everybody is lying

The witnesses are not confused, they are just out to get your client. Someone else did something terrible. Maybe a drug dealer gets home invaded and instead of trying to get the real guy(s) who did it he takes the opportunity to get your client off the streets through the cops. Maybe the cops found a baggie of drugs near the vicinity of your client (and others) and they don’t know who it belongs to but they did not appreciate your client’s lack of cooperation with their investigation.

Go Hard

Whatever you choose stick with it and go hard. You can’t go to the jury with reasonable doubt on this one. You can’t go with maybe something else happened. You can’t go to the jury with they could be lying. If you are going with everybody is lying you have to go as hard as humanly possible.

-Everybody is confused

These witnesses are not lying. The crime was committed, it was committed by someone who probably looks something like your client. They have no motive to lie, no reason to want to stick it to your client. But they are just confused. They were under too much stress to accurately see who did it. They are jumping to conclusions based on a suggestive lineup or show-up. But at the end of the day they are just trying to do the best they can.  This is what we call misidentification. To read more about this particular defense click here and here.

The “It Never Happened” Criminal Defense Theory

Under this criminal defense theory the crime alleged never actually happened. There was no burglary, there was no attempted murder, there was no robbery. The witnesses are not confused, they are just out to get your client. Maybe the witnesses are cops trying to pick up some arrest stats. Maybe they are cops who didn’t like the way your client spoke to them during the initial detention. Maybe they are cops who roughed up your client and now need to put a charge on him/her to make their problems go away.

Or maybe the witness is the scorned ex-girlfriend trying to settle a score. Maybe the witness is a guy who got into a fight with your client and got beat and now is making up a story to make it seem like the reason he was beat is because your client had a weapon. Or maybe the witness is a government informant (aka a rat) looking to get a pass on his criminal behavior by implicating your client in criminal activity your client had nothing to do with.

Go Hard

Maybe it is a combination of all these. The scorned ex-girlfriend gets the cops involved, the cops lie about seeing things they did not see because they believe the girlfriend, and now a jailhouse snitch is looking to cash in on this situation. Whichever variation comes up doesn’t really matter. The only thing that matters is that under this theory of defense everyone who is pointing the finger at your client is lying. It is up to you to connect the dots. And you have to make sure to go hard.

There is no soft “it never happened” defense.

The “It Happened, But It Is Not A Crime” Criminal Defense Theory

Under this criminal defense theory the facts are basically stipulated to. The only question for the jury is whether what happened is actually a crime or not.

-Self defense

Under this criminal defense theory maybe your guy/gal did use force against one (or many people). The witnesses are not lying or confused. Whatever the government says happened actually happened. But your client’s use of force was called for. It was legal. Your client was met with force or threat of force and he/she reasonably responded with defensive force.

A good voir dire will take you a long way when putting on a self-defense theory.


Similar to self-defense the question is not whether the acts meeting all the elements of a crime happened, the question for the jury is why did it happen. And most importantly, is the reason why it happened a legal justification so that the defendant is not guilty.

Necessity is when you are driving with a suspended license because you live a block away from the hospital and you have your friend in the back seat who is bleeding out from a stab wound. Necessity is when you steal your neighbor’s boat because you are otherwise stranded on a burning dock and have no way to get out alive otherwise.

When working a necessity defense make sure to ask yourself whether an everyday person would consider your client’s actions as reasonably necessary under the circumstances. Just because your client claims that he or she really needed to drive to the liquor store doesn’t mean that the jury will agree.


This criminal defense theory applies mostly to sex charges and batteries. It comes up in rape cases where there was sex between the alleged victim and your client. You are not challenging the fact that they had sex, you are challenging the argument that it was against the will of the alleged victim. Usually in sex cases this defense includes the alleged victim lying about what really happened.

In non-sex cases like a battery the defense comes up when you are saying that the other guy got hit but it was not against his will. The other guy was posturing and inviting your client to fight. He can’t now run to the cops and complain just because he lost the fight. The alleged victim in this case can take the stand and say that the hit(s) was/were against his will all he wants but as one of my colleagues once ably put it during one of our trials:

When a man challenges another man to fight, and the other man takes him up on the invitation that’s not a crime.


Under this defense your client committed the offense as charged but he or she is not criminally responsible due to a mental defect. Whether that means that he or she did not have the capacity to understand the difference between right and wrong or something else depends entirely on your jurisdiction.

To see a more thorough jurisdictional breakdown of this defense see this. Out of all the defense in this article this one is probably the hardest one to get right in front of a jury.

All Of The Above

Sometimes your cases get a bit complicated. Complicated cases call for mixed defenses. Maybe your guy did act in self-defense and the cops are lying about the fact that he confessed to having attacked the alleged victim without justification. Whatever the case may be, remember that nothing prevents you from combining two or more of these defenses as needed.

One thing to keep in mind is that the more of these defenses you combine into your trial story the more points of vulnerability your story will have. It is easy to convince a jury that cops are lying. It is a bit harder to convince them that the witnesses have misidentified your client, the cops are lying about the evidence they say they found on him, and your client’s confession was coerced. All at the same time.

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