Advocacy and notary office. Activities of a defense attorney in a trial court in a criminal case (the most important)

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Advocacy and notary office. Activities of a defense attorney in a trial court in a criminal case (the most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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9. Activities of a defense counsel in a court of first instance in a criminal case

During the judicial investigation, built on the basis of competition and equality of the parties, the lawyer has a real opportunity to actively participate in the study of circumstances and evidence that justify or mitigate the responsibility of his client: the testimony of witnesses, expert opinions, material evidence, documents.

The defense counsel at the stage of consideration of the case in the court of first instance has the right to collect information, ask the court by filing appropriate petitions for the interrogation of witnesses, the request for additional evidence, etc. According to Art. 274 of the Code of Criminal Procedure of the Russian Federation, the evidence of the prosecution is first examined, and then the defense.

During the trial the defender's position must be active. He needs to participate in the study of evidence. It is especially important to ensure the immediacy of the examination of evidence in court proceedings (Article 240 of the Code of Criminal Procedure of the Russian Federation). Immediacy implies the duty of the court to personally perceive, consider and examine the evidence available in the case and submitted to the court, on the basis of which the presence or absence of circumstances to be proved in a criminal case will be established. This approach of the legislator makes it possible to exclude distortion and manifestation of subjectivism.

Lawyer during interrogation will ask questions in favor of the defendant. Therefore, it must be taken into account that the prosecution can use the right of cross-examination, that is, it is desirable to prevent questions that are unfavorable for the defense so that the most favorable and least vulnerable answers are given to them.

The procedure for interrogating a witness established by the Code of Criminal Procedure of the Russian Federation provides the defense side with the most opportunities to clarify the circumstances that testify in favor of the client.

During the interrogation, the lawyer has the following goals and objectives:

1) obtaining from a witness in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation full, truthful, objective evidence;

2) an explanation of the reasons for the contradictions in the testimony of the same witness during interrogations conducted at different stages of the investigation;

3) revealing the inconsistency of the testimony of the witness with the materials of the criminal case, as well as the testimony of the accused, the victim and other participants in the process;

4) obtaining evidence from a witness that justifies the client, mitigating his responsibility;

5) selection of materials for defensive speech.

During the interrogation, it is necessary to establish psychological contact. A lawyer has no right to encourage a party’s desire to confuse the court or give false explanations. Therefore, pre-trial preparation of the defendant and the defense witness can be reduced to counseling on how to give an answer without damaging the defense tactics, but within the framework of the law.

Authors: Nevskaya M.A., Shalagina M.A.

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