Theory of the Case: The Cornerstone of an Effective Criminal Defense
By: Jonathan Guerra Bohórquez, Specialist in Criminal Sciences and Criminology
When defending our clients under Colombian law, attorneys must have a clear direction as well as a compelling narrative to guide the judge toward the right conclusions[1]. This narrative leads the judge to a conviction grounded in factual, legal, and persuasive terms[2]. For this reason, we must always work from a well-defined theory of the case.
A solid theory of the case must meet certain requirements and address multiple aspects of the criminal process. In this article, I will outline some of those that, based on my experience, I consider most relevant.
Preparing for Trial
The theory of the case must be designed with a potential oral trial (juicio oral) in mind, even if that stage never materializes. This approach compels the attorney to prepare for the most demanding phase of the Colombian criminal process, ensuring that the foundations of the strategy are robust and complete.
The Relationship Between the Theory of the Case and the Evidence
A frequent question is: do the available evidence determine the theory of the case, or does the theory of the case define what evidence must be obtained? The answer is not straightforward. First, the attorney must assess the client's account; second, the attorney must critically analyze the available means of knowledge (medios de conocimiento). From these elements, a preliminary theory of the case can be formulated.
With this initial theory in hand, the attorney must work to gather evidence capable of corroborating the hypotheses put forward. Should those hypotheses prove untenable, they must be reformulated and the theory adjusted accordingly. That said, it is essential to avoid constantly shifting strategy, since doing so is tantamount to having no strategy at all.
Requirements of a Solid Theory of the Case
- Clarity and coherence: The theory of the case must be clear, consistent, and free of ambiguity, vagueness, or internal contradictions.
- Evidentiary foundation: It must be supported by means of proof that back the hypotheses advanced.
- Alignment with criminal law doctrine: The structure of the theory of the case must address every element of the punishable conduct, including typicity (tipicidad), unlawfulness (antijuridicidad), and culpability (culpabilidad), as well as authorship and participation, grounds for the absence of criminal responsibility, and all other matters relating to the offense under Colombian criminal law.
- Credibility and reasonableness: The narrative presented to the judge must be logical and believable — only then can the judge be persuaded to accept our version of the facts. That version must be constructed ethically.
- Narrative autonomy: The theory of the case must be capable of communicating itself implicitly through the presentation of evidence, even in cases where the attorney decides not to state it explicitly.[3]
It bears emphasizing that there is no obligation to disclose the theory of the case. In some situations, it may be strategically advantageous to keep it in reserve, allowing it to emerge implicitly through the presentation of evidence. In any event, a well-structured theory of the case must be able to speak for itself.
[1] ¿Cómo y para qué se elabora una teoría del caso? Yesid Reyes Alvarado. Universidad Externado de Colombia. 2020.
[2] Building a persuasive theory of the case requires drawing on extralegal criteria. In this context, the attorney must have access to interdisciplinary tools, drawing on fields such as psychology, rhetoric, and others. A clear example of this interdisciplinary approach is the application of the primacy and recency effect when structuring the theory of the case and closing arguments — which is just one of many strategies and tools to consider.
[3] Como la teoría del caso imita el ajedrez. Germán Pabón Gómez. Editorial Ibañez, 2021.
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