Developing a Case Theory

Anthony J. Colleluori Esq.
Woodbury, N.Y.

‘‘What’s the matter Bob’’, I asked the young attorney sitting next to me in the jury box, ‘‘You look a little pale’’.

‘‘I’m not feeling too good, I expected to see judge Goodfellow here today and thought I’d be able to plead this DWI to time served:. ‘‘Just my luck I’ve got Judge Cannon. He said try it or plead it but either way my kid is looking at 60 days plus’’!

‘‘Unless you win,’’ I offered, but I could see Bob didn’t see that as an option. ‘‘What’s your theory of the case’’? I asked.-

‘‘I just told you, plead out to time served’’.

‘‘That’s not a theory of the case. It’s a case strategy and not much of one at that’’. ‘‘How did you plan on winning the trial’’?

‘‘I didn’t. ‘‘Now I’m a dead man. If this kid pleads, or blows trial, 60 days will really mess him up.’’

I had to agree it wouldn’t make for a great summer but then again think of the fall paper he’d be able to write: ‘‘My Summer on the rock Pile’’. Cannon could write the Forward. Bob wasn’t in the mood for gallows humor so I decided to try a different tact. ‘‘It’s your first trial and summers are slow anyway, why don’t I help you prep the case’’, I suggested. He accepted. We obtained a continuance and we headed over to Barristers to figure out what to do. We looked at the charge and put together a theory of the case. Here’s how.

The Theory of the Case

The theory of the case should be considered from the moment your client finishes telling you what happened. It begins during the first interview and is refined as each bit of information is received. It encompasses what the opposition must prove, what you can prove, what objections you’ll make, what motions you argue. It considers the discovery you have, the discovery you need, and the way you will go about obtaining it. Your theory will dictate how you dress your client, what you say in your opening, and what jurors you allow to serve on the jury. The theory of the case is the theme of your defense it sets the stage for what will be presented by the defendant and it must at least be considered before any meaningful progress is made on the file.

Make a Proof Chart

The first thing to do is to put together a proof chart.2 Very simply take a ‘‘yellow pad’’ and draw a line down the middle separating the 2 sides on a 40% / 60% ratio. Now get a copy of the statue the client is alleged to have violated. Assign each element a number and then recopy them in elemental order onto the smaller half of your yellow sheet. Leaving enough space between each to allow you to copy on the larger part the different witnesses and exhibits that go toward proving that element.

In the case our friend Bob is handling the proof chart would look like this:
Vehicle and Traffic Law section 1192.3 reads as follows: ‘‘No person shall operate a motor vehicle while he is in an intoxicated condition.’’

Elements Proofs
Motor Vehicle  
Intoxicated Condition  

Now a view of the available proof of each element followed by possible defenses gives our chart some shape:


A) witness saw defendant driving.

B) defendant is registered owner of vehicle.

C) defendant states ‘‘I was driving h home from my surprise birthday party at the Dublin Pub’’.

Defenses: it was dark and the witness was driving in the opposite direction at a high rate of speed thereby hindering the witnesses; ability to observe; car registration is not relevant to operation and even if it is ‘‘some’’ proof it is at best circumstantial; co-occupant of defendant’s vehicle states she was driving; statement taken in opposition to defendant’s 5th Amendment rights; notice of statements received late.

Motor Vehicle

Defendant found inside his 1989 Dodge Stealth which had gone off the road and struck a tree.

Defense: the vehicle was inoperable at the time of defendant’s arrest. The defendant did not have control over the vehicle as there was no key in the ignition nor on the defendant’s person.

Intoxicated Condition

A) defendant refusal of a breath test provides a presumption that the test would have shown that the defendant was over the legal limit at the time of the test.

B) defendant is observed by both the arresting officer and the Breath technician with glassy eyes, odor of alcoholic beverages on his breath, unable to walk on straight line.

C) defendant was administered a Horizontal Gaze Nystagmus test by the Breath tech at the time he refused the breath test and failed the test.

Defenses: the defendant was not offered the test within two hours of his arrest; the defendant was arrested in violation of his 5th and 6th amendment rights and thus the refusal was involuntary and/or unknowingly made; defendant was injured in the accident; the gaze test was improperly given; the scientific proposition behind the gaze test is flawed; defendant has a knee problem

Now that we have our chart we can take that and turn it into a short simple one paragraph statement that tells the reader why we should prevail. In the case above the prosecution statement might read something like this:

‘‘The defendant, after having consumed a number of alcoholic beverages at a surprise party given in his honor, drove his 1989 Dodge Stealth on Merrick Road in Massapequa, County of Nassau, NY at a high rate of speed, past Agnes DeRosa, and lost control of the vehicle leaving the roadway and having his forward progress halted by his running into a tree. Ptl. Stephan J. O’Keefe upon arriving at the scene spoke to the defendant who admitted that upon arriving at the scene spoke to the defendant who admitted that he had been drinking before operating the car. He also had strong odor of alcoholic beverages on his breath. Appearing to have no injuries from the accident the defendant was unable to walk a straight line, and his eyes were glassy. After telling the defendant that he was being placed under arrest for DWI the defendants’ companion Helen Hanson stated that she was driving the vehicle however the vehicle was registered to the defendant. At the central testing unit after being given the opportunity to submit to breath testing under VTL section 1194 and the appropriate warnings concerning the failure to take the test the defendant voluntarily refused the test 1 hour and 58 minutes after his arrest. He failed a horizontal Gaze Nystagmus test administered by Sgt. Lawrence Wojohowitcz the Breath Technician.’’

A defense theory will be a bit longer if the evidence is readily available (i.e. your client remembers what happened or a witness comes forward). Now let us explore how we might use this Theory you have developed and apply it to the rest of your case.
Using Your Theory of the Case

A good place to begin is in Discovery. We would like to pin down the time of arrest and the time of the test refusal. A demand for test documents (which should already be part of your CPL Section 240.20 demand 3) must be served. Twenty days after arraignment you should redemand any statement made by your client to any police personnel4. There will be a Department of Motor Vehicles hearing on the refusal5 you should plan on attending it. You also want to find out about who the other witness is.
Now you can bet that most prosecutors are not going to want to turn over testimony earlier than they have to. You will have to be aggressive in your discovery search and your theory of the case will help. For instance there is a witness in the above example that was traveling in the opposite direction of our clients’ car. Since part of our theory is that this 2nd drive is not in the position to see anything we might make specific request for documents under a Brady/Villardi6 theory alleging that very fact and calling for all documents in governments hands that discusses the witnesses vantage point when she observed the accident.

We also can use the theory we developed to plan out our own investigation. For example we might want to get an accident reconstruction expert to show that the road was not safe even if the vehicle was operated in a cautious manner. A medical expert might be able to shed some light onto how our client’s medical condition affected the results of the horizontal gaze nystagmus test and the other field sobriety tests.

In thinking about motions the theory we develop becomes very important as well. If the client when stopped said ‘‘I was not driving the car because I had 8 beers tonight’’. And the district attorney failed to give proper notice of their intent to use the statement against the defendant on the people’s direct case the defense attorney could successfully move for preclusion. If however counsel was going to put the defendant on the stand to say basically the same thing he told police at the scene of his arrest, counsel may decide that he would rather move to suppress and gain a hearing and it’s attendant Rosario7 discovery. Thus counsel’s theory of the case would be particularly important in determining what motion’s he will make. Likewise an Assistant District Attorney, knowing that there is a witness that will say she was driving the vehicle instead of the defendant might want to deny the defendant the opportunity for discovery and voluntarily decide not to use the statement on her direct case.

The information you receive from speaking to investigators eye-witnesses, prosecutors and in your own research will cause you to formulate and reformulate both your chart and your case statement. Obviously the courts ruling in pre-trial hearings on Motions in Limine will also affect the theory. Thus you should review your statement after each revelation is made to you. You will be able to use it as a basis of your Opening Argument and if your diligent about keeping it up during the trial it should become the basic outline of your summation. A good theory of the case will help you to organize your work, prepare you for trial and be a road map to a hopefully successful verdict.









PLEASE TAKE NOTICE that the defendant hereby demands, pursuant to C.P.L. section 240.20, that the District Attorney to produce, deliver, disclose and make available for inspection, photographing, copying or testing the following materials:

(a) Any written, recorded, or oral statement (if oral, a written detailed summary thereof) of the defendant and of any co-defendant, made to a public servant engaged in law enforcement activities or to any person acting under such public servant’s direction or in cooperation with such public servant; if none, so indicate.

(b) Any written report or document, or portion thereof concerning physical or mental examinations, scientific tests, and/or experiments, relating to the pending charge of Driving While Intoxicated and made by, or at the request or direction of a public servant engaged in law enforcement activity.
(c) A copy of all routine police reports concerning the instant case except to the extent that they contain legal opinions or theories which fit within the exclusion for attorney’s work-product. C.P.L. section 240.10(3).

The material requested should include, inter alia, if applicable the following:

  1. Alcohol/Drug Influence Report For;
  2. Breathalyzer Test Record & Breathalyzer Operational Check List;
  3. Central Testing Unit Work Sheet;
  4. Report of Refusal to Submit to Chemical Test;
  5. Simulator Maintenance Log for Unit Used;
  6. Breathalyzer Maintenance Log for Unit Used;
  7. Breathalyzer Ampoule Test Record.

(d) Defendant’s breath sample which was analyzed by the police in this case and any and all additional breath samples taken from defendant at about that time.
(e) The glass ampoule used in the breathalyzer machine used during defendant’s breathalyzer examination.

Any supporting depositions, or statements, made by the alleged victim(s) or complaining witness (es) upon which the charges in this proceeding are founded; if none, so indicate.

Any photograph or drawing relating to or made in connection with this criminal proceeding, made by a public servant engaged in law enforcement activities, or by any person acting under said public servant’s direction, or in cooperation with said public servant, including but not limited to the following:
a. Crime scene photographs and drawings;
b. Arrest photography of the defendant;
c. Any line-up photographs;
d. All photographs exhibited to witnesses, including that of the defendant and of all other persons involved in any photographic identification proceedings, whether or not identification was made by a witness;
e. Any composite sketch or drawing attempting to depict a perpetrator of the crimes alleged in this proceeding;
f. Photographs of any witnesses or of alleged victims showing the physical condition of that person or person;
g. Photographs of any property involved in the pending case, including property alleged to have been stolen or property alleged to have been taken or seized from the defendant or the co-defendant(s);

with respect to any of the above, if none exist, so indicate.

Any property seized or otherwise obtained from the defendant or co-defendant; if none, so indicate.

Any tapes or other electronic recordings made in connection with this case which the District Attorney intends to introduce at trial; if none, so indicate.

Any alarm, warrant or other directive issued by any law enforcement agency in connection with this case; if none, so indicate.

Any potentially favorable evidence that tends to negate the guilt of the defendant, mitigates the degree of the offense, or reduces the punishment; if none, so state.

Names and addresses of any eye witness(es) or any identification witness(es).

Any written or recorded statement, including any testimony before a grand jury, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony.

A record of judgment of conviction of a witness the People intend to call at trial if the record of conviction is known by the prosecutor to exist, including, but not limited to, a New York State Identification and Information Service (N.Y.S.I.I.S.) report of every witness the People intend to call at trial.

The existence of any pending criminal action against a witness the People intend to call at trial, if the pending criminal action is known by the prosecutor to exist.
The items sought are either within the possession, custody or control of the District Attorney, the existence of which is know, or by the exercise of diligence, should become known to the District Attorney.

It is submitted that absent extremely extenuating circumstances, failure by the District Attorney to communicate with any and all members of police agencies or other agents involved in the instant case or prospective witnesses herein for the People regarding said evidence and materials, prior to the ‘‘eve’’ of the trial, does not constitute ‘‘due diligence’’ pursuant to C.P.L. section 240.20(1) (b).

The defendant hereby request all radio, motor patrol transmissions and 911 tapes be preserved and copied be made available to the defendant and that even if the request for copies is denied the persecution is put on notice that these materials are specifically requested and are Rosario and Brady material under People v. Dudley, 538 NY2d 57 (1989) and must be provided to him on or before trial.

DATED: Jericho, New York
December 4, 1991

Yours etc.
Attorney for Defendant
180 Froehlich Farm Blvd.
Woodbury, NY 11797

District Attorney
99 Main Street
Hempstead, New York 11550

District Court

1)This procedure is equally useful to both defense and prosecution. While prosecutors get fewer discoveries, they have the advantage of having the primacy in fact collection. It is crucial to an accurate theory of the case that all of the pertinent facts be obtained however that support the theory put forth by its proponent.

2) I would like to credit and thank Professor Douglass Colbert of Hofstra University School of Law for teaching me this procedure. It is not difficult to learn but is hard to master. Nevertheless it holds most of us in good stead and is very handy in getting us to think logically about the case at hand.

3) A sample Demand is attached at the end of these materials as an aid. It is a duplicate of one I file in most Misdemeanor DWI cases.

4) The reason for the wait is that the prosecution has 20 days from the date of your initial demand in which to serve notice of their intent to use statements of the defendant their failure to serve within that time frame will result in the preclusion of those statements. You are nevertheless entitled to the statements and should demand them as they can still be used against the defendant on cross. Note further that if you demand them and they are served late and then you participate in a suppression hearing on those statements you have waived the issue of preclusion (See People v. O’Daughtry, NY2d, NYS2d (198) for a further discussion concerning preclusion of statements and identification testimony). Your theory of the case may help you identify when preclusion might be waived.

5) This is also a place to gain discovery as you will have the opportunity to cross examine the police officers and obtain some limited discovery. A good discussion of DWI procedure can be found in P.Gerstenzang Handling the DWI Case in New York (West Publishing Co. 1989)

6) Brady v. Maryland, 373 U.S. 83 (1963)
People v. Villardi, 76 NY2d 67, 555 NE2d, 915, 556 NYS2d 518 (1992).

7) People v. Rosario, 9 NY2d 286, 213 NYS2d 448 (1961).

The moment you are charged with a crime or the police start questioning you, you have the right to remain silent until you consult with a lawyer. Before you speak to anyone – even the police, call the Law Offices of Anthony J. Colleluori & Associates. When you need help, we are here for you 24 hours a day, 7 days a week. (516) 741-3400 – call us today!

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