In preparation for the examination of evidence, it may be useful to prepare a defence schedule. This note for the defence should indicate the fact or facts to be proved by the particular means of evidence, and should also contain a separate note of the evidentiary facts (separately those favourable to the party and those unfavourable) necessary and expected to establish the final position on the case.11

The basic question is: can a lawyer advise on the artificial creation of an evidence or the destruction of an existing evidence? Not directly, of course, as this would constitute an offence against justice and therefore cannot be covered by the “defensive lie”. However, the defender can inform his client about the evidence that could be incriminating, and from then on the responsibility for the decision rests with the accused,12 as the defender cannot, on ethical grounds, even indirectly (e.g. by implying), exert any influence on the execution of a possible illegal act.

The defender is not the “primary informant” of the defendant, but must rely on the facts in the indictment. Putting subjects other than the accused in the foreground can only disturb or obscure the performance of the defence’s duties, which may even undermine the legal soundness of the final statement (defence).

The lawyer’s procedural consistency is only ensured if his statements in the trial are mainly based on the facts of the prosecution case or on the evidence already discovered.13 The requirement of ‘positivity’ in the work of the defence therefore expresses that

An important pillar of defence tactics is to educate and inform the defendant at an appropriate level. In this context, I also do not consider it unethical for the defence to raise the possibility of making untruthful statements to the defendant, provided that there is no risk to the outcome of the case, from a strategic point of view. To deny this possibility would be to call into question the right to an effective defence. Moreover, neither law nor ethical norms preclude such a way of working on the part of the defence, and I consider that informing the defence of the possibility of “lying in defence” is one of the most essential obligations of the defence15 (which, of course, cannot rise to the level of encouraging lying in defence).

It is a fundamental principle for the defence that it is not the quantity of evidence but its quality that is decisive. It is therefore unnecessary for the defence to deal with circumstances which are not in dispute or which are proved beyond reasonable doubt. This is true even if the accused is in denial. In such cases, it is sufficient merely to refer to the direction of the defence, but it is unnecessary to go beyond that and make irrelevant arguments.

The defence tactics can be greatly influenced by an unexpected statement made by the defendant at trial. The lawyer must carefully consider whether he or she can identify with the defendant’s statements, which are new in substance. In this respect, it is not advisable to withhold an unexpected confession from the accused unless the lawyer is in possession of (direct) information indicating the criminal liability of an accused.16 Nevertheless, whether or not an unexpected confession is made, the defence lawyer should clarify the legal implications of this incriminating statement at the outset of the case, in order to avoid any inconvenience that may arise later (e.g. complaints from the accused’s relatives).17

The defender must also bear in mind that information which has not been proved but is nevertheless recorded in the report can also be used to draw factual conclusions. A classic example of this is a rejected motion for evidence. If, for example, a defence motion is rejected which would have proved that the accused had always confessed immediately in previous cases, the court can still assume that this motion is well founded in substance. Therefore, the rejection of an evidentiary motion does not mean that the contents of the motion cannot be effectively relied upon in the defence.

A particular problem is the case of the “unruly defendant”. It is well known that the trial is the stage of the proceedings during which anyconfrontation between the accused and his defence counsel should be avoided completely. However, if a tactical dispute does arise (e.g. in relation to 1-1 motions or questions), the defence counsel should ask the court for a short recess to discuss the issue. In the event of persistent disputes, incompatibility due to clashing personalities or obvious client dissatisfaction, I believe that the defender should resign and that, in this respect, he should seek to preserve the dignity of his professional conduct. I would add that there is always the possibility of a face-to-face pre-trial conference, in the lawyer’s office, in the court corridor or even in the police interrogation room.19 Although it is far from being a continental tradition to have a precise pre-trial strategy (a dress rehearsal of sorts), there is nothing to prevent the defence lawyer from discussing with the defendant in advance the issues and any other comments or evidence motions that he or she considers appropriate.20

At all times, the defender should refrain from suggesting that the court can only judge on the basis of the trial record. It is true that the Constitutional Law (clearly) links the concepts of trial and evidence, but this does not mean that evidence obtained at the investigative or prosecutorial stage is not subject to the court’s obligation to examine and properly assess it. 21

The defender should always endeavour to ensure that his or her presentations are recorded in writing, as the case file is also the basis for any subsequent review of the case.22 I also consider it essential that the defender should make a personal note of all relevant information obtained during the preparation phase of the trial. Although these documents do not have any probative value, they can be of great assistance in subsequent procedural steps.23

Oral or written statements by the defender of rights must be clear and to the point. The judicial process is a logical process of continuous communication in which each statement can have serious consequences. The proper structuring of what is said, however, is not at all an indication of contempt for the court’s ability to grasp the situation, but a systematic activity which tends to facilitate decision-making and is ‘collegial’. Is there, then, a methodology to the lawyer’s activity? From this point of view, I believe that there certainly is.

It is reasonable for the defender to familiarise himself as thoroughly as possible with the general questions requiring expertise, which the proposed secondment of experts is intended to establish or exclude. This attitude is all the more justified because the acquisition of the terminus technicus will make it much easier to ask questions to the point, which may also speed up the process of clarifying the facts.24 The defender should also ensure that he has a copy of the full text of the opinion.25 In this respect, it is not desirable for the lawyer to merely recall the opinion from memory. It is also necessary to study the reasoning of the opinion, since it is only in the light of the latter that it is possible to argue effectively that the opinion is unfounded or well founded.26

If the defence lawyer becomes aware that there are persons in the audience who may influence the evidence or other testimony, he or she should immediately report this fact to the court in the form of a comment. Exclusion of the public from the hearing may therefore also be requestedby the defence counsel if it is necessary in the interest of the accused.27 However, in the matter of granting or excluding publicity, the defence counsel can never take account of his own interests, for example, he cannot agitate against exclusion simply because he has good reason to believe in an acquittal. On the one hand, the expected success of the defence cannot be used for “lawyer advertising” and, on the other hand, the defence must assume that the number of people in the courtroom has no influence on the judge’s decision. Therefore, in my view, any attempt to persuade the defendant’s relatives or friends to attend the court in the largest possible number is futile. Moreover, this method can often backfire if the problematic character traits of the persons present are clearly indicative of the character traits of the accused. After all, there is nothing to prevent the court from referring to the defendant’s environment, his company or his consequent lifestyle in justifying a conviction.28

A key issue of defence tactics is also when the lawyer should disclose information in the defendant’s interest to the court. In this regard, I believe that the defence lawyer must constantly see what he wants to get out of the case. If, for example, his aim is to challenge the accused’s status as an accomplice, he should indicate this in his remarks or by asking questions to witnesses.

From a tactical point of view, changing or adding to the charge at trial can cause inconvenience. In such cases, the lawyer should try to avoid asking for an adjournment because of the amendment or addition – unless the case is more complex, involves a large number of charges, or otherwise requires further preparation.