How Do You Build a Defense for a Sexual Assault Case?

Building a Defense for a Sexual Assault Case

I can explain in a nutshell how we go about getting a case ready for trial, how we build a defense. You have to start by realizing that every trial is a battle between two stories or, to use the lawyer term, two theories of the case . . . two answers to the question, what does this evidence that the jury has heard mean? What is the story that this evidence tells? 

Now in a sexual assault case, you’ve got a complaining witness who is saying the defendant sexually assaulted me. The prosecution’s theory of the case and the defense theory of the case, they both have to answer the question, “Why is the complaining witness saying that?” The prosecution’s theory of the case is pretty simple. The prosecution says the complaining witness is saying that because it really happened, the defendant really did commit that sexual assault.

The defense obviously has to have a different answer to the question. Why is the complaining witness saying that? Maybe our answer is because she has a boyfriend, and the boyfriend found out that she had sex with the defendant, and the boyfriend is not happy about that, and she needs an excuse. That’s just one example of a theory of the case. You can probably think of others. 

When we investigate a case, when we interview witnesses and gather records and visit scenes of events, we have in mind the several theories of the case that we are considering presenting to the jury in that case. We are using the investigation to test the theories of the case, to see which ones are going to hold up, as we gather more information, and which ones are not. Just before trial, we decide which theory of the case is the best--which is the most persuasive, to which is the jury most likely to say, “Yeah...that might have happened.” 

Because if the jury says, “Yeah....that might be how it happened,” then we win, and you get your life back.

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