Genres of Criminal Legal Defense
Updated: Jul 6
By Clayton T. Robertson (Criminal Defense / Civil Litigation Attorney)
When we are hired for a new criminal case, it always helps to filter it through one of the "genres" of criminal defense theories available to us.
These often are not a perfect match, and some cases involve more than one possible theory depending on how the prosecution views the case, but these genres are useful as we consider our various negotiation and litigation strategies.
Taken in large part from Cat Kelly's “genres” of legal defenses:
i. “It never happened” correlates to a false complaint (set-up) or mistake about an event did not occur;
ii. “It happened but I did not do it” correlates to mistaken identification, alibi, set-up, etc.;
[Two sub-types: SODDI: "Some Other Dude Did It" used when we don't know who committed the crime but we know it was someone else; and TODDI: "The Other Dude Did It" used when we know who else in particular committed the crime.]
iii. “It happened, I did it, it but it was not a crime” correlates to consent, self-defense, defense of another, accident, etc.;
iv. “It happened, I did it, it was a crime, but it wasn't this crime” correlates to lesser-included or incorrectly charged offenses;
v. “It happened, I did it, it was the crime charged, but I am not responsible” correlates to lack of criminal responsibility, etc.;
vi. “It happened, I did it, it was the crime charged, I am responsible – so what?” correlates to so-called 'jury nullification'; and
vii. "I did it, I’m not telling that to the jury, the prosecution just can’t prove it."