H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The Defense Theory of the Case: Colorado Lawyer’s Playbook

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By H. Michael Steinberg Colorado Criminal Defense Lawyer

There’s a point in nearly every criminal case when everything goes quiet.

Not in the literal sense—phones still ring, people shuffle, and someone’s always running late. But at some point, you pause the scramble for persuasive arguments and ask the key question:

What is this case really about?

The real answer forms your defense theory. In Colorado, this is especially critical. Strict rules, judges who have no patience for fluff, and practical juries mean you need a clear, strong theory to guide your case. Without one, you’ll waste energy on “good points” that don’t connect.

This is a hands-on guide—not a classroom definition but an actual playbook for how Colorado defense lawyers build, refine, and use the defense theory from the beginning of a case to trial.

02-Colorado-Theory-of-the-Case-Difficult-Facts

What Is (And Isn’t) a Defense Theory?

A defense theory is the clearest, truthful explanation that matches your evidence and creates reasonable doubt about at least one key element the prosecution must prove.

  • It should be simple.
  • It must fit the evidence.
  • It must be true.

A defense theory is NOT:

  • Just a list of defenses
  • A closing argument
  • A catchy slogan or a vibe
  • Something that explains away bad facts by pretending they don’t exist

If your theory relies on jurors ignoring inconvenient facts, it’s denial, not a theory—jurors and judges can sense that a mile away. A strong theory confronts ugly facts and explains them, showing why the prosecution’s case still falls short.

Why Theory Matters So Much in Colorado

Colorado’s legal system forces you to commit to a theory early:

  • Discovery rules mean the prosecution will see your strategies and expert testimony coming. Without a theory, you risk revealing too much or missing critical prep.
  • Motions practice is serious—suppression, 404(b), sequestration, and other rulings limit the evidence the jury sees.
  • Jury instructions are element-focused, so your theory needs to attack a key element or seriously challenge a witness.

Colorado jurors are practical—give them a clear, sensible story, not drama, so they can deliver a “not guilty”verdict without feeling they’re causing chaos.

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The Three Main Types of Defense Theory

Most solid defense theories fall into one of three categories (though you usually favor one):

  1. “They didn’t prove it” (Elemental Failure)
    Focuses on the prosecution’s inability to prove identity, intent, causation, or another element. It works best when there’s a clear, human-sized gap—something relatable, not just a legal technicality.

    • Example: Misidentification in stressful conditions, lack of “knowing” possession in a drug case, or uncertain intent in a fight.

  2. “It happened, but it’s legally justified” (Affirmative Defense)
    The defense is self-defense, defense of others, or necessity. These are powerful if you can prove the foundation, but if reasonableness isn’t clear, it can collapse quickly. Your client’s words and demeanor become crucial.

  3. “The investigation is flawed” (Reliability Attack)
    Not just “bad police work”—you show evidence-gathering was unreliable: suggestive IDs, chain of custody issues, interviewer bias, or failure to collect important evidence. This theory lands with Colorado jurors as long as it’s concrete and not just emotional.

06-Colorado-Building-Criminal-Defense-TimelinesStep-By-Step: Building Your Theory

1. Start with Elements, Not the Police Report
The police report is written as though the outcome is predetermined. Start with the charging document and the Colorado Jury Instructions.

  • List every element.
  • For each, answer: “How will the state prove this?” and “What is my best factual or legal challenge?” Your theory must directly undermine at least one element.

2. Make Two Timelines

  • One is the state’s version.
  • The other is your defense’s view, grounded in your evidence. Be precise with times and dates—accuracy builds credibility.

3. Confront ‘Bad Facts’ Early
Uncomfortable facts—running, lying, incriminating texts—are part of every case. Options:

  • Admit and reframe (“He ran because he panicked—not proof of guilt.”)
  • Explain in context (trauma, confusion, language, intoxication)
  • Minimize as irrelevant noise
  • Move to keep them out (suppression, motions)

But never ignore them—both juries and judges notice.

4. Write a One-Sentence Theory, Then Expand
Discipline yourself:

  • One clear sentence, simple enough for a friend.
    • “This investigation latched to the first suspect and ignored evidence that didn’t fit.”
    • “He acted in self-defense, and the state can’t disprove that beyond a reasonable doubt.”
  • Then, three tight sentences:
    1. What happened?
    2. Why is the state’s evidence unreliable or incomplete?
    3. What element can’t they prove, or why does the law justify this conduct?

5. Match Theory to Actual Witnesses
Don’t base your plan on a fantasy trial full of perfect witnesses. In reality, people may be late, angry, forgetful, or unavailable.

  • Which witnesses do you control?
  • Which don’t you?
  • What can each honestly support? Make sure your theory survives even if your best witness has a bad day. Sometimes, the safest strategy is targeting an elemental failure instead of relying on risky client testimony.

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6. Pressure Test with the State’s Best Day
Imagine the prosecution’s witnesses are all at their best, the evidence is as strong as possible, and rulings go against you.

  • Does your theory still make sense, or does it fall apart?
    If it collapses, fix it before trial, not after jury selection.

7. Turn Theory Into Decisions
A theory isn’t useful unless it drives your choices:

  • Voir dire themes—what biases matter
  • Evidence to exclude or admit
  • Who to examine aggressively
  • Whether your client should testify
  • Which visuals or charts support your story

Let the theory guide every step—otherwise, you’ll waste time on distractions.

Colorado Moves: Motions That Support Your Theory

Not every motion fits every case, but here’s how theory and motions often align:

  • Elemental Failure:
    Suppress speculative testimony and challenge poor ID procedures. Request specific, element-focused jury instructions.
  • Justified Conduct:
    Fight for the admissibility of a complainant’s violent acts or evidence justifying your client’s fear.
    Pursue clean jury instructions for self-defense.
  • Unreliable Investigation:
    File suppression motions, push for missing evidence, and request expert testimony to challenge the state’s process.

Be careful if your theory relies on missing evidence (like a lost video)—argue for reasonable inferences, but don’t reach beyond what’s allowed.

Voir Dire: Use Your Theory to Screen, Not Convince

In voir dire, your goal is to find jurors who can accept your theory.

  • Misidentification: Seek people who understand memory is fallible.
  • Self-defense: Find those who know “reasonable” doesn’t mean “perfect.”
  • Poor investigation: Select jurors who question authority.

Keep questions plain. Let silence do its job; listen more than you talk.

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Opening Statements: Only Promise What You Can Deliver

Keep your opening narrowly focused on your theory.

  • Frame the case with your one-sentence theory.
  • Give the jury a lens for the evidence.
  • Lower emotional temperature—sometimes boring is powerful.

Cross-Exam: Every Question Serves the Theory

Before cross-examining, write, “What do I need from this witness for my theory?” Get those key admissions and stop—discipline and tone matter.

The Defense Case: Sometimes, “No Evidence” Is Evidence

Sometimes the strongest move is simply cross-examining and resting—no witnesses, just focused doubt. If you do call witnesses, make sure their testimony is tightly aligned with your theory.

Closing: Structure Wins

Colorado closings are best when organized:

  • Restate your one-sentence theory.
  • Walk through each element, showing evidence that creates doubt.
  • Explain bad facts honestly.
  • Emphasize the standard: “beyond a reasonable doubt.”

If possible, tie your argument to the exact jury instructions.

Example Theories

  • DUI: “State can’t prove impairment at the moment of driving—the observations are inconsistent, driving wasn’t unsafe, and the timeline suggests harmless causes.”
  • Domestic Violence: “This was a mutual argument with unreliable memories; the state can’t prove who started it or that any injuries were intentional.”
  • Drug Possession: “Presence isn’t possession—no evidence he knew about the drugs, and the circumstances point to someone else.”

05-Colorado-Criminal-Defense-ElementsChecklist: Do You Have a Defense Theory?

  • Is it clear, jargon-free, and one sentence long?
  • Does it attack a key element?
  • Can you explain bad facts without pretending they don’t exist?
  • Do your strategic decisions all support it?
  • Does it work if your client doesn’t testify or if some evidence is excluded?

If not, you have a folder, not a defense theory.

 

Wrap-Up: The Defense Theory Is Your Backbone

Skill and hard work aren’t enough if your case lacks structure. Colorado juries want clarity, honesty, and a story that respects their role.

  • Write your theory in one sentence.
  • Keep it front and center—return to it whenever you get lost in side arguments.

Whenever you feel pulled off track, remind yourself:

What’s this case really about?

That’s your playbook. That’s how you give the jury a reason to doubt and a path to “not guilty.”

FAQs

What is a defense theory in Colorado criminal cases?
It’s the simplest, truthful explanation that fits the evidence and creates reasonable doubt about at least one element of the prosecution’s case—your strategic roadmap from intake to trial.

Why is a clear theory especially vital in Colorado?
Because strict procedures, direct judges, and practical juries demand clarity. Your theory shapes everything from discovery to motions and jury instructions.

What are defensive theory misconceptions?
It’s not just a list of defenses, a closing argument, or a slogan. It cannot gloss over bad facts; it must face and reframe them honestly.

What are the three primary theory types?

  • “They didn’t prove it”: Element-based attack
  • “It’s justified”: Affirmative defense
  • “Faulty investigation”: Reliability challenge

How should I start building my theory?
Begin with the charges and jury instructions. Note each element, how the state will prove it, and your best factual or legal challenge.

How do you handle “bad facts” in your theory?
Spot them early and have a plan—admit, reframe, explain, minimize, or seek exclusion—but never ignore.

Always anticipate how the prosecution will use these facts and be ready to address them in cross, opening, or closing to protect your client’s case.