The spread of the misconception that a criminal investigation can only affect those who have deliberately and persistently disregarded existing laws has fortunately now fallen considerably. The media have certainly contributed to this, and their coverage of trials has become increasingly intensive in recent years. In many cases, the layman is given an insight into criminal proceedings which reveals a tough struggle between the parties to the proceedings, i.e. the court, the public prosecutor’s office and the defence, for the truth. Often the parties to the proceedings have completely different assessments of whether or not an accused has committed a crime. The so-called “Autobahn Racer Trial” may serve as an example, in which the audience watching the trial was also divided as to whether the defendant “Turbo-Rolf” was guilty or not. Some were convinced of his guilt beyond any doubt, while other trial observers thought he was innocent. It can also be statistically proven that investigative procedures of the public prosecutor’s office affect quite predominantly people who are not subsequently convicted for the crime of which they are suspected. More than 60% of the investigations by the public prosecutor’s office concern accused persons who are not charged in the end, with 25% of the accused not being convicted. (1)
All this makes one thing clear. Law is made by people and where people work, mistakes can and will always happen. In criminal proceedings, as in all areas of law, the popular saying is sometimes true: “To be right and to be right are often two different things”.
The criminal defence lawyer is the accused’s counsel. In this function, he has the task of ensuring a proper defence of the client by, on the one hand, bringing to bear all circumstances that exonerate the accused and, on the other hand, within the scope of his task to protect the client, he monitors that the regulations of the Code of Criminal Procedure, which have a protective function in favour of his client, are also observed by the investigating authorities and the courts.
As daily practice shows, the granting of legally guaranteed rights is not a matter of course, but often requires a tough struggle on the part of the defence.
The course for a successful criminal case from the point of view of the accused is therefore usually set at an early stage, i.e. in the preliminary proceedings. In the case of a denying accused it is therefore already important at this stage that defense counsel and client recognize and define exonerating circumstances. The Code of Criminal Procedure does oblige the public prosecutor’s office to determine the exonerating circumstances. But even the best will in the world to fulfil these duties is not enough to protect the accused. Especially the public prosecutor and the criminal investigation department, as state prosecuting authorities, are required to behave in a psychologically difficult way. It is obvious that a professional activity aimed at criminal prosecution influences the impartiality of the judgement. The stronger the suspicion, the more the prosecutor’s ability to determine and consider exonerating circumstances with the same impartiality and objectivity as incriminating ones is impaired. If he has suspicions, it becomes difficult for him to presume innocence. (2)
The dogma advocated by some colleagues that criminal defence is always a fight with the public prosecutor’s office and the court is, incidentally, considered wrong here. The confrontational and sometimes even emotionally aggressive confrontation with the court and the public prosecutor’s office can sometimes not be prevented if the client’s interests are consistently represented. Much more often, however, it will be the dialogue and the professional argumentation that can serve the interests of the client. This requires not only sound legal knowledge on the part of the defence counsel, but also psychological empathy. A judge who, even when there is no reason to do so, constantly encounters resistance from the defence counsel, can easily be put in danger of “getting back” the defence counsel for such a procedural behaviour at some point. The client is then usually the one who suffers the most. Accordingly, it is necessary to adapt the defense to the respective requirements, which requires tact and sensitivity. The individual stages and activities of the defense counsel in criminal proceedings can be briefly described as follows:
Assumption of the mandate
In most cases, the mandate is taken over when the person seeking advice is in massive difficulties, for example after a house search or arrest. In these cases, the involvement of a qualified defence counsel is required as soon as possible. According to § 137 StPO the accused has the right to consult a defence lawyer at any stage of the proceedings.
Before the defence counsel has had the opportunity to inspect the investigation file, the client is advised in most cases not to give any information on the case. This is his criminal procedural right and cannot be interpreted to his disadvantage. Accused persons often find it difficult to exercise this right, as they understand that silence can be interpreted as an admission of guilt. This is not the case. The accused must bear in mind that the file kept by the public prosecutor’s office regularly contains both incriminating and exonerating circumstances. However, the accused can usually only make an admission of guilt that does not harm him if he knows these facts. Therefore, the basic rule is: “Talk is silver – silence is gold”.
Inspection of files
After the investigation file has been inspected, the defence counsel will discuss its contents with the client and will discuss the factual and legal situation. At this stage, consideration must be given to the extent to which the accused should now provide information on the case. Discussions with the police, the public prosecutor’s office and the court are often helpful to take the “edge off” of a case in advance. It goes without saying that the client is informed about such steps and that they are agreed to.
Activities in the so-called “preliminary proceedings
In the preliminary proceedings, i.e. in the stage of the proceedings up to the filing of charges or a discontinuation of the proceedings, exonerating circumstances may have to be worked out. As far as possible, the defense will work towards a discontinuation of the proceedings. If the public prosecutor’s office does not discontinue the proceedings, the charges will be brought before the competent court.
Proceedings after arraignment
If the public prosecutor’s office brings charges to the competent court, the conduct of a trial is usually unavoidable. This trial must be strategically prepared. A defence strategy is therefore developed with the client. If necessary and if this serves the client, an attempt can already be made to reach a procedural agreement with the parties involved in the proceedings, i.e. the public prosecutor’s office and the court.
The main hearing serves to clarify the question of the extent to which the accused’s accusation can be confirmed and the weight of any culpability that may exist. Here the decision is made whether and how the accused is to be punished. Depending on the severity of the accusation, the main hearing takes place in the first instance before the single judge at the district court, the court of lay assessor at the district court or before the Grand Criminal Court at the regional court. In the main hearing, the defence will pursue a defence goal previously defined on the basis of the given facts. The choice of strategy depends on the goal of the defence and can be handled flexibly. The knowledge of the parties involved in the trial, i.e. the judge and the prosecutor, must also be taken into account when choosing the strategy. An experienced defense attorney knows most judges and prosecutors from practical experience and will be able to assess which judge in certain constellations must be defended hard and with whom one can “bring the cow off the ice” by legal discussions in advance of the trial.
The judgment does not necessarily terminate the proceedings. If necessary, an appeal may still be lodged, i.e. appeal or revision.
(1) Vultejus, DRiZ 1995, 226 ff.
(2) Hans Daas, Handbuch des Strafverteidigers, paragraph 4