Juan Antonio Matiz Monroy — Lawyer, Universidad de los Andes · Specialist in Criminal Law, Universidad Sergio Arboleda · Professional licence 294.746 (C.S.J.)
In Colombian practice “theory of the case” and “opening statement” are used as synonyms. They are not.
The theory of the case governs the whole proceeding and every hearing. The opening statement is a single procedural act, with its own rule, moment and limits, which is exhausted in one of them.
The confusion has a concrete cost. Whoever treats the two as one builds their theory of the case on the eve of the trial, when almost nothing is left to decide.
The theory has four components —factual, legal, evidentiary and strategic—, criteria that confirm it and a moment at which it becomes fixed. From the act it differs in nature, function and reach.
One question often mixed up with this falls outside this article: whether the defence, being free to stay silent, should open. It has its own treatment in Why the defence should give an opening statement.
1. The Code names the act and houses the theory there
The phrase “opening statement” does not appear once in Ley 906 de 2004. “Initial statement” appears once, in the heading of article 371. And “theory of the case” also appears once in the whole Code, in the body of that same article.
The text is short: «Before proceeding to the presentation and taking of evidence, the Prosecution shall present the theory of the case. The defence, if it so wishes, may do likewise» (CPP, art. 371).
There the confusion is born. The legislature housed the name of the analysis inside the rule that governs a hearing-room act, and practice ended up treating the name and the act as one thing.
The rules on the act fit in a few lines. It comes before the taking of evidence and allocates the burdens asymmetrically.
The prosecution shall present the theory of the case, because it is the prosecution that indicts: «it is necessary that at the start of the trial the prosecuting body set out the theory of the case with which it will seek to persuade the judge of the accused’s responsibility» (C. Const., Sent. C-069/09).
The defence may do likewise, «if it so wishes». The Court upheld that wording: silence at that moment is a legitimate methodological strategy. Whether it is advisable to exercise the option is argued in the companion article.
Neither the victim nor the Public Ministry intervenes here, because of «the adversarial character of this stage of the criminal trial and the need to protect equality of arms» (C. Const., Sent. C-209/07). Their turn is in the closing submissions under article 443.
What the act cannot do
Its object is to present the theory of the case and anticipate what facts will be established by the evidence. Hence the four prohibitions formulated by Baytelman and Duce:
- It is not an exercise in rhetoric or oratory.
- It is not a political or emotional address.
- It is not an argument about evidence that has not yet been taken.
- It is not an occasion for personal opinions.
The third is the one most often breached. Arguing the weight of evidence before it is taken is to anticipate the closing submissions, which have their own turn in article 443.
That is the act. The theory of the case is something else, and it is the one that matters.
2. What the theory of the case is
Four movements order this section. First, definition and formula; then the components. Next, how it is confirmed, and finally when it is built and when it becomes fixed. All of it serves to show why the theory cannot be the act in article 371.
2.1 Definition and formula
The Constitutional Court defined it in examining article 371. It is «the formulation of the hypothesis that each party seeks to have accepted by the judge in the judgment, according to the factual, legal and evidentiary elements gathered», and it «answers to the methodology and work plan designed by the parties for the proceeding» (C. Const., Sent. C-069/09).
Two things in that definition matter here. The first is that it brings together analysis and decision: not only facts, law and evidence, but also a work plan. The second is that it places it before the trial, because it adds that the theory «comes and goes several times across the stages prior to the oral trial».
Hence our formula: the theory of the case is the central argument of the case, the assertion that certain facts, establishable with the available evidence, produce the legal consequence being sought, articulated by a strategic decision about how to litigate.
2.2 The four components
Its four components answer different questions. The factual: which version of the facts is maintained. The legal: what legal consequence is sought and why the law leads there. The evidentiary: by what means that version will be established.
The strategic is not a fourth analysis running in parallel. It is the decision that makes the other three defensible. None of the four is exhausted in a single intervention at a hearing.
2.3 How it is confirmed
Defined as a hypothesis, the theory stands or falls by these criteria. If it fails on one, the problem is not fixed at the lectern.
| Criterion | What it requires of the theory of the case |
|---|---|
| Non-refutation | No established evidence may be incompatible with it, either directly or through what follows from it. |
| Confirmation of derived hypotheses | What would have to be true if the theory is true must be verifiable. Each verification reinforces it. |
| Coherence | It must hold together internally and fit with the rest of what we know about the world. |
| Explanatory power | It must explain as much of the evidence as possible, not only the part that suits it. |
| Simplicity | The fewer unproved facts that have to be assumed, the better. |
| Elimination of alternative hypotheses | It must rule out incompatible versions still standing, beginning with the other side’s. |
The list is from González Lagier («Inferencia probatoria y valoración conjunta de la prueba», ob. cit., pp. 390-394).
2.4 When it is built and when it becomes fixed
Starting point. The theory is adopted from first contact with the case and is built with two materials: the information available and what can still be obtained. Each new item confirms it, corrects it or replaces it.
That flexibility does not weaken it. It is what allows decisions before the trial —what to look for, what to ask for, what to concede—, which is where almost every irreversible decision is taken. Pozner and Dodd put it plainly: litigation «does not begin when the parties announce they are ready for trial» (ob. cit., §§ 2.02 and 4.08).
That starting point is usually placed at the first interview with potential witnesses, so as to avoid late construction. Here we take a step back: the interview does not inaugurate the theory, it tests it.
A rising threshold. The Code raises the requirement as the case advances: reasonable inference to charge (art. 287), probability of truth to indict (art. 336) and knowledge beyond reasonable doubt to convict (art. 381).
Point of no return. Ferrer Beltrán calls conformation the stage in which the evidential material is assembled: it covers the investigation, the proposal of evidence, its admission and its taking. That stage closes when the case is ready for judgment, and only then does assessment begin («Los momentos de la actividad probatoria en el proceso», ob. cit., p. 60).
For the litigator the cut comes earlier: the start of the trial. There the theory is already stated in public and every witness is examined under it.
What is assessed, in any event, is the evidence and not the impression the advocate leaves. A new hypothesis can succeed if it explains the whole better, which is the criterion of explanatory power already tabulated.
Credibility counts within a limit. It is not the lawyer’s but the hypothesis’s, and it is measured against the evidence. What a late change wastes is work: the examinations already conducted under the previous theory, and the judge’s attention on points that ceased to matter.
Practical rule. Fix it before the trial; change it when the evidence requires, not when the litigation turns uphill.
If the theory of the case is all that, it cannot be the same thing as an act at the trial hearing.
3. Where they part
The confusion arises from the Code itself, which calls the act an initial statement and mentions the theory of the case within the article that governs it. That explains the confusion; it does not justify it.
| Theory of the case | Opening statement | |
|---|---|---|
| Nature | Central argument of the case | Regulated procedural act |
| Function | Decides | Communicates |
| Reach | From first contact and in every hearing | A single hearing, in the turn under art. 371 |
Nature. The theory of the case is an argument: the reasoning by which it is maintained that the law leads to the ruling sought. The opening statement is a regulated procedural act, with its rule, its moment, the parties entitled to make it and limits of content.
Function. The theory decides: it answers what is maintained, on what evidence and why. The statement communicates: it conveys that answer to the judge. That is why the second depends on the first, and never the other way round.
Reach. The theory operates from first contact and in every hearing; the statement is exhausted in the turn under article 371. That it is exhausted there does not make it minor: it is the moment when the theory first reaches the trial judge.
Baytelman and Duce put that reach as a rule of discipline: «my theory of the case governs everything I do in the proceeding and never, never, never do I do anything inconsistent with my theory of the case».
That reach is not a metaphor. At the inquiry stage the theory steers the investigation: it determines what is looked for and where. It then decides whether to accept the charge or contest pre-trial detention, and what is communicated in the turn under 371. If the theory did not exist before the hearing, the act under 371 has nothing to say.
Hence treating the two concepts as one is not harmless. Whoever believes the theory of the case is the opening speech does not have it during the stretch of the proceeding in which almost every irreversible decision is taken.
That is the root of improvised openings: absence of theory, not want of oratory. The converse is also true: the statement does not improve a weak theory.
The theory is built from first contact and updated up to the trial; the act only states it. Whether it is advisable to open when the law does not require it is the question of the companion article.
4. Conclusions
The confusion between theory of the case and opening statement arises from the Code itself. Article 371 of Ley 906 de 2004 governs the initial statement and mentions the theory of the case within it. They are, however, different things. The act comes before the taking of evidence. The prosecution must make it and the defence may, an option the Court upheld in Judgment C-069 of 2009. It also has limits: it is not rhetoric or personal opinion, nor an early argument about the evidence.
The theory of the case, by contrast, is the central argument, and it brings together facts, law, evidence and a strategic decision. It stands if it withstands the evidence, explains the whole and rules out rival hypotheses. It is adopted from first contact with the case and becomes fixed when the trial begins. Hence the theory decides and the statement communicates: without a prior theory, the opening has nothing to say.
That theory is built before the hearings that test it. That is the purpose of the initial consultation: two one-hour meetings and a written opinion. In them we review the facts, the available evidence and the stage the proceeding has reached. On that basis, the firm can provide advice during the investigation and take on the criminal defence through to trial.
Frequently asked questions
What people usually ask us
Are theory of the case and opening statement the same thing?
No. The theory of the case is the central argument of the case and governs every hearing; the opening statement is a regulated act exhausted in a single one. The table in section 3 separates them on three planes.
Is the defence obliged to make an opening statement?
No. Art. 371 gives the option —«if it so wishes, may»— and the Court upheld it in Judgment C-069 of 2009. Whether it is advisable to exercise it is another question, with an article of its own.
Do the victim and the Public Ministry take part in the opening statement?
No, and the Court justified this by the adversarial character of the stage (C-209 of 2007). They do take part in the closing submissions under art. 443, as noted when presenting the act.
Can the weight of the evidence be argued in the opening statement?
No. That is to anticipate the closing submissions, which have their turn in art. 443. It is the third of the four prohibitions set out when presenting the act, and the one most often breached.
When should the theory of the case be built?
From first contact with the case. The interview with witnesses does not inaugurate it: it tests it. It is updated with the information that appears and with what can still be obtained, while the threshold rises from art. 287 to 336 and from there to 381. It is fixed when the trial begins. Section 2 develops this.
Legal and bibliographic references
Legislation. C.N., art. 29. · CPP, arts. 16, 267, 287, 288, 308, 323, 336, 337, 339, 344, 350, 356 a 359, 366, 371, 372, 381, 391, 443 y 444 (L. 906/2004).
Case law. C. Const., Sent. C-209, mar. 21/2007. M.P. Manuel José Cepeda Espinosa. · C. Const., Sent. C-069, feb. 10/2009. M.P. Clara Inés Vargas Hernández.
Scholarship. Anderson, Terence; Schum, David y Twining, William. Analysis of evidence. Second edition. Cambridge: Cambridge University Press, 2005. · Baytelman Aronowsky, Andrés y Duce Jaime, Mauricio. Litigación penal, juicio oral y prueba. Santiago: Universidad Diego Portales, 2004. · Decastro González, Alejandro. El contrainterrogatorio. Medellín: Comlibros, 2005. · Fajardo Vanegas, Juan Sebastián. Manual de contrainterrogatorio. Bogotá: Tirant lo Blanch, 2021. · Ferrer Beltrán, Jordi. «Los momentos de la actividad probatoria en el proceso». En Ferrer Beltrán, Jordi (coord.), Manual de razonamiento probatorio. Ciudad de México: Suprema Corte de Justicia de la Nación, 2022, pp. 47-77. · Ferrer Beltrán, Jordi. «La decisión probatoria». En la misma obra, pp. 397-457. · González Lagier, Daniel. «Inferencia probatoria y valoración conjunta de la prueba». En la misma obra, pp. 353-396. · Pozner, Larry S. y Dodd, Roger J. Cross-examination: science and techniques. Second edition. LexisNexis Matthew Bender, 2004.
Sources consulted through another work. Mauet, Thomas. Trial techniques and trials. Tenth edition. New York: Wolters Kluwer, 2017, p. 683, cited by Fajardo Vanegas, ob. cit. · Moreno Holman, Leonardo. Teoría del caso. Buenos Aires: Didot, 2013, p. 25, cited by Fajardo Vanegas, ob. cit.
About the author
Juan Antonio Matiz Monroy — A graduate of the Universidad de los Andes (2017) with a specialisation in Criminal Law from the Universidad Sergio Arboleda (2021), he built a solid command of oral litigation at the Universidad del Rosario and at the Universidad de Salamanca, Spain. He sharpened his rigour in evidential reasoning with CESJUL and the Universidad Externado de Colombia. In parallel he went deeper into asset forfeiture —a field that requires understanding the State’s logic on property with the same rigour with which liberty is defended—. He is currently a candidate for the Master’s in Evidential Reasoning at the Universitat de Girona (Spain) and the Università degli Studi di Genova (Italy). Professional licence 294.746 (C.S.J.).