Debate between the parties in a criminal trial: speech by a lawyer

Judicial debates in criminal proceedings

Debate between the parties is one of the most important elements of the trial of a criminal case.
“Judicial debate is one of the parts of the court session where the parties most actively exercise their right to defend their own position in a criminal case. The debate between the parties consists of speeches by the prosecutor and the defense attorney... Judicial debate is a competition between the parties to a dispute”[1]. The participation of a defense lawyer in judicial debates should have a significant impact on the formation of the convictions of judges and jurors when the court evaluates all the circumstances of the case. At this stage, all the hard, painstaking work carried out in the previous stages is summed up.

Participation in judicial debates gives the defense attorney the opportunity to thoroughly criticize the prosecution's version and present to the court all the arguments in favor of the defendant. At the same time, without being afraid to touch upon sensitive issues, the defender must remember that the value of criticism lies in its truthfulness, in the social significance of the issues raised.

Participation in judicial debates is an important right of the parties and a prerequisite for reaching a just verdict.

In practice, there was a case when the accused, during the consideration of a criminal case, at the final stage, in the debate asked the court for an acquittal, citing his complete innocence in the crime committed, and the defense lawyer asked the court not to punish his client strictly and, as far as possible, to sentence him to probation punishment due to the fact that the crime he committed is not particularly dangerous to society. As a result, the court sentenced the accused to a real term of imprisonment. Stormy debates, as a rule, end with remarks.

Replies are summaries to what has already been said in the debate. They are very short in content and convincing in their wording. A remark, usually directed towards one's procedural opponent, should not be offensive.

A protocol on this is drawn up, signed by the investigator and persons who are familiar with the decision. According to Art. 198 of the Code of Criminal Procedure of the Russian Federation, when ordering and conducting a forensic examination, the suspect, accused, and his defense attorney have the right to exercise the rights provided for in this article. However, Chudnov M.V.

was deprived of his right granted to him by law. On January 26, 2011, the investigator was presented with a petition to declare inadmissible the evidence - expert opinion No. 1217 dated December 28, 2011. The investigator denied this petition and did not take measures to restore the rights of the defendant. Plenum of the Supreme Court of the Russian Federation in paragraph 16 of Resolution No. 8 of October 31, 1995 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice” (as amended by

Thus, when appointing and conducting a forensic physical and chemical examination in this criminal case, the requirements of Part 3 of Art. 195 of the Code of Criminal Procedure of the Russian Federation, which resulted in the impossibility of realizing the rights of the suspect specified in Art. 198 Code of Criminal Procedure of the Russian Federation. In this connection, the conclusion of the forensic chemical examination No. 1217 dated December 28, 2011.

So in accordance with Art. 11 of the Law of the Russian Federation “On Operational Investigation”, it is possible to present the results of operational investigative activities to the court in the manner prescribed by departmental regulations. The defender himself is free to construct his speech and its quality largely depends on the experience and personal abilities of the defender. But despite this, the content of the speech is ultimately almost entirely determined by the position taken on the case.

In his speech, the defender provides arguments to substantiate his position and tries to refute the arguments of the other side. Practice shows that there are three main positions that determine the content and volume of the main part of the defense lawyer’s speech in a specific criminal case. 1. Position on mitigation of punishment.

Filina G.A., Mis A.S., Golubkova S.S., Bardukova A.P. Leonova I.D., Chikina V.N., Korzhenevsky A.A., Matushkina E.N., - confrontations by Filin G.A. and Mis A.S. with the defendant Chudnov - expert report No. 1217 dated December 28, 2010 - physical evidence - a bundle with a mixture of a narcotic substance, - a protocol for the inspection of objects - a bundle with a narcotic substance, - research certificate No. 402 dated December 3, 2010.

- a report on the discovery of signs of a crime. All the evidence collected during the investigation and the above evidence only confirms the fact of the accidental discovery of a psychotropic substance in the pocket of Chudnov’s jacket. Defendant Chudnov does not dispute this fact, but states that he did not store the psychotropic substance, but that it was planted on him by OBNON employees in the Krasnogorsk microdistrict G.A. Filin.

or Mis A.S.

If a lawyer makes a debate in a criminal trial, then they must critically “go through” the prosecutor’s indictment. It is impossible to prepare for the debate; usually experienced lawyers prepare theses for speaking in the debate. Basically, before speaking in the debate, new facts and evidence appear in the process that were not known to the parties at the first stages of the trial.

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It is impossible to predict the testimony of witnesses, the emergence of new evidence, the presentation of specialists and the conclusions of forensic examinations. Skillfully maneuvering the examined evidence, a criminal lawyer must convince the court during the debate why the evidence he presented of his client’s innocence is more convincing than the prosecutor’s indictment. Why is this or that evidence not relevant and essentially inadmissible?

A lawyer cannot be a person who has a criminal record for an intentional crime, has been duly recognized as incapable or has limited capacity, has been expelled from the bar, or has been dismissed from law enforcement agencies for committing a disciplinary offense - within one year from the date of dismissal, as well as a person whose license is valid which was terminated [3].

There should not be anything superfluous in them, no speculations that are not relevant to the case (not to be confused with doubts in favor of the defendant. It is advisable to attach the speeches and statements of the lawyer to the criminal case in writing, for the reason that the secretaries of the court session rarely record the speeches of the participants verbatim. Gritsko Sergey Valerievich 3 article 30 – part 1 article 228.1, part.

Filina G.A., Mis A.S., Golubkova S.S., Bardukova A.P. Leonova I.D., Chikina V.N., Korzhenevsky A.A., Matushkina E.N., - confrontations by Filin G.A. and Mis A.S. with the defendant Chudnov - expert report No. 1217 dated December 28, 2010 - physical evidence - a bundle with a mixture of a narcotic substance, - a protocol for the inspection of objects - a bundle with a narcotic substance, - research certificate No. 402 dated December 3, 2010.

None of the evidence presented by the prosecution indicates, defines or specifies any form of guilt of the defendant Chudnov. During the investigation and court hearing, the question remained unresolved for what purpose Chudnov acquired and kept the psychotropic substance with him: as a souvenir, for personal use, for transfer to someone.

Here it must be noted again that the accused cannot be limited in time in his final statement. Due to the fact that the last word of the defendant in court, a sample of which must be studied very carefully, is important for the case and quite often affects the sentencing, the Code of Criminal Procedure establishes guarantees during its utterance.

In the last word of the defendant, the sample text of which does not contain a single normative act, you can include the following information: - words about personal, work biography (if there are certificates, awards for good work, then you must definitely say about it); - about marital status and difficult financial situation, as well as the fact that the family will lose the main breadwinner if a real term is assigned;

- sometimes it makes sense to say that a person has not been convicted before; — about excellent studies in educational institutions; - be sure to declare remorse for what you have done (this is done only if guilty); — express a personal opinion on a civil claim (if filed). In case of disagreement Situations in life are different, and not every person who finds himself in the dock is guilty of what he is accused of.

A sample text of the final speech of the accused may be as follows: “Dear court! While under investigation, I completely changed my attitude towards life and decided not to take prohibited drugs anymore. I sincerely repent of storing narcotic substances in my apartment that were intended for personal use. In addition, I have a desire to undergo addiction treatment.

Unfortunately, it is not possible to ask such a question due to the criminal procedure law. Naturally, if he does not work all his life with drawings and graphs.
But dear court, if you find my arguments unconvincing, then when imposing a punishment I would ask you to take into account the positive characteristics of Ivanov, the presence of a dependent young child, which is a mitigating circumstance for the punishment, and his full admission of guilt.
Debate of the victim in a criminal case sample table Debate of the victim. The court cannot limit the time of judicial arguments.
And perhaps the last important point that needs to be paid attention to is the operative, final part of the lawyer’s defensive speech in the debate. The role of a lawyer in a modern criminal process is negligible if local or higher elites are interested in the case.
However, if you want to examine the collected evidence, you can refuse the special procedure.

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Attention

When assessing the testimony of witnesses, the defense attorney must take into account whether the person questioned in court is a witness for the defense or the prosecution. All testimony of witnesses must be compared with each other and with other materials of the case, and if contradictions or inconsistencies in the testimony are identified, it is imperative to draw the attention of the court to this in your speech, making sure to make a reasoned assessment of such testimony.

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Therefore, the court does not always perceive what an agitated defendant says. However, the latter cannot be interrupted or stopped.

Important

A well-written defense speech by the defendant can help win the jury over to his side if he can make convincing arguments when defending his position and point out circumstances in order to mitigate liability. The time for speaking is not limited so that the accused's right to defense is not violated.

Defender's statement

The lawyer's statement is aimed at acquittal, but raises the same issues as the prosecutor's.

Part 1 of Article 51 of the Code of Criminal Procedure states that the defense attorney is obliged to consider the circumstances in accordance with the interests of the accused.

Defensive speech sums up the work done and is the main means in the debate, helping the court to form a positive opinion about the defendant. The quality and chosen strategy depends on the experience and abilities of the lawyer. It is important to express your own thoughts about the degree of proof of guilt and the extent of punishment.

The main task is to refute the arguments presented by the prosecution.

There are three areas within which lawyers work:

mitigation of possible punishment;
complete acquittal;
reclassification of the charge to another article.

When there is no doubt that the prosecution has provided enough evidence of guilt and it will not be possible to refute it within the framework of the investigation, the task of the defense attorney is to mitigate the punishment. In the prairies, the emphasis is on the individual, mitigating circumstances are indicated in accordance with Article 61 of the Code of Criminal Procedure.

As part of the defense strategy, it is possible to challenge the aggravating circumstances that have already been put forward by the prosecution, some individual points, and point out the impossibility of using an additional punitive measure.

It is possible to reclassify charges in cases where the accused confirms the crime, but disagrees with the acts entrusted to him. The main emphasis is on an in-depth study of the evidence base and compliance of the charges with the Criminal Code.

The defense has the right to demand reclassification of the article to a less strict one, to challenge some of the circumstances of the charge, and to ask for the use of a recently introduced penalty for their client.

Complete acquittal occurs if guilt is not proven. If there is not enough evidence, then there is no crime.

When the accused does not agree with the crime charged, the defense lawyer is obliged to demand an acquittal based on a more detailed examination of the proposed evidence. This is why they participate in judicial debates in criminal proceedings.

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Important

The defender competently builds his speech, influencing the court not only legally, but also psychologically, presenting convincing arguments in favor of his Principal. In order for the defendant's last speech to have an effect, it is necessary to think it through to the smallest detail.

But before writing the text for the speech, you need to determine your position and build on it. An example of a defendant’s speech, compiled together with a lawyer: Last word Dear Court, In life, one situation is enough for everything to turn upside down.

With a clear conscience I can say that my life has started anew. Therefore, the court does not always perceive what an agitated defendant says.

However, the latter cannot be interrupted or stopped. New circumstances Sometimes additional important circumstances may be revealed during the defendant's final word.

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An important place in the criminal process is occupied by the preparation of the defense attorney for the debate, when the state prosecutor presents and the court considers all the evidence of the prosecution. A criminal lawyer who conscientiously performs his duties must prepare a written speech for publication and subsequent inclusion in the materials of the criminal case, in accordance with Art. 292 of the Code of Criminal Procedure of the Russian Federation. If you need to seek help from a lawyer and you want to find out his professional knowledge and skills, ask the lawyer to read one of his speeches.

After reading the lawyer’s speech, even if you are not knowledgeable in criminal proceedings, you will be able to appreciate his knowledge and professionalism. Here is an example of such a speech by Mikhail Yuryevich Emelyanov’s lawyer: “Dear court, Chudnov is accused of committing a crime under Part 1 of Art.

In addition, I would like to once again ask for forgiveness from the victims for (specify what exactly, i.e.)

After all, a good lawyer will always help his client in drafting the necessary text, even preparing a speech for him himself. In some cases, defenders provide the principal with a ready-made sample of the last word.

How to construct a defendant's defense speech in his own defense? You can include: words about your work history (if there is something to note); excellent academic performance; it makes sense to mention marital status (children);

Debate of the parties in court and defense speech of the lawyer

The debates of the parties in arbitration and civil cases differ from the debates in criminal cases: in arbitration and civil proceedings, a lawyer operates with a logically structured system of evidence, and the emotional and psychological side of speech is important in a criminal court. The defensive speech of a lawyer in a criminal case directly depends on the position of the client.

They say that a bad artist is one who is not nervous when going on stage. It's probably a bad sign when a lawyer isn't nervous about giving a defense . The excitement is explained by concern for the fate of his client, the desire to fulfill his professional duty to the maximum. After all, the purpose of a defensive speech is to form a favorable conviction for the defendant in the court.

Gritsko Sergey Valerievich

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The only purpose of my existence now is to prove to everyone that I am worthy of freedom and want to meet my family again, communicate with them, just look at them, spend time together, I realized that my attitude towards life has changed dramatically. I reevaluated our entire relationship. My family - mother, grandmother, wife, son, younger sister - all remain with me to this day and support me in such a difficult situation.

They believe in me, they know that I am capable of benefiting society. I am grateful to them for their help, for everything they did to keep us close. My wife began to communicate very closely with her parents, now they spend a lot of time together as a family, solve common problems, wait for me and believe that I will soon return to them. I can’t even imagine how hard it is for them without me, because I was the only breadwinner for the family.

Attention

The process of criminal proceedings is a complete unforeseen “obstacle course” and by the end of the court session, questions arise from the client to his lawyer on certain issues of the dispute. At the first stages, the client seems to understand the lawyer, but at the end of the case, the opposite happens. In connection with these circumstances, it is necessary to make adjustments to the speech in one direction or another, but not to the detriment of the “common cause.”

Experienced lawyers sometimes simply do not advise their client to speak in the debate, but to answer the court that they fully support the speeches of their lawyer. This just does not apply to the last word of the accused in criminal proceedings. The need to adjust the speech in the debate may also become mandatory if the court, after hearing the participants in the trial, taking into account the emergence of new evidence, resumes the criminal or civil process.

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In his speech, the defense lawyer most often touches upon such aspects of examinations as: a) the professional preparedness of the expert to give an opinion, as well as his objectivity; b) the limits of the expert’s competence; c) The conclusions reached by the expert in his conclusion. When analyzing the evidence, the defense attorney should not forget about the material evidence available in the case.

He needs to draw the attention of the court not only to their presence, but also to their absence, if this or that material evidence was not found or was lost during the preliminary investigation. Concluding his speech, the defender needs to once again briefly, in a few phrases, emphasize the most significant points.

In the final part of the speech, the defense attorney should precisely formulate his request to the court.

Comrade lawyer, we have already read this

In the US Senate, where there were previously no formal restrictions on the speech of senators, some of them resorted to the “filibuster.” In order to defeat a bill they did not like, they gave hours-long speeches, as a result of which the House did not have time to pass it. Dissatisfaction with this practice led to the fact that the “filibuster” was limited in time.

After such attacks, non-confrontational lawyers interrupt their speech and begin to rearrange their speech on the fly, trying to determine in a couple of seconds which arguments to remove and which to leave in order to appease the soon-to-be presiding judge. This can be very difficult to do when all the arguments seem important. As a result, the effectiveness of speech in debates drops sharply.

In case of conflicting interests of the defendants, each of them must be provided with a defense lawyer. Since in such situations a discussion between defense attorneys is not excluded, those who can refute the unfounded allegations of other defendants should speak first. With this procedure, the best conditions are created for the protection of the latter; their defenders have the opportunity to challenge not only the arguments of the accusers, but also other defenders. If this order is not violated in the proposals of the defenders regarding the sequence of their speeches in the debate, it must be accepted by the court. In the event that the defenders propose to deviate from this procedure or have not reached an agreement, the sequence of making defensive speeches is determined by the court.

The court cannot limit the duration of judicial arguments. It is also very important that the court should not allow restrictions on the participants in the judicial debate when they present arguments on the merits of the charge. However, the presiding officer has the right to stop persons participating in the debate if they relate to circumstances not related to the criminal case under consideration, as well as evidence declared inadmissible (Part 5 of Article 292 of the Code of Criminal Procedure of the Russian Federation)

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Sample of the defendant's argument in a criminal case

How to format The defendant composes the text for himself, because only he will speak, and the rest of the participants in the trial must listen to him. Therefore, the speech must be written on paper (if it is long enough) in neat handwriting, so that later during the trial it can be easily read, but it is better to learn it by heart.

A sample of the last word of a defendant who has admitted his guilt in a crime committed may look like this: “Dear court and participants in the trial! I fully (or partially) agree with the accusation brought against me. I admit my guilt in what I did and am ready to bear the punishment that the court will impose on me.

Procedural rules

Debate is a complex process, so its procedural rules are known only to professional lawyers. Firstly, you should know that it is necessary to accumulate evidence that was collected earlier into one whole. It does not matter whether you are a plaintiff or a defender. After completion, the court gives each party the opportunity to add remarks, if any. This stage of the trial is considered the most striking and memorable, because here the lawyer has to make every effort to show how good a speaker he is.

Where to start a debate in a criminal case

Judicial debate in criminal proceedings It is important for the prosecutor to assess the validity and appropriateness for a given case of a more severe (approaching the highest limit) or less severe (based on the lower limit) punishment of the defendant, so that this corresponds to the gravity of the crime and the person and is reasonably correlated with the criminal scale provided for in the Criminal Code -legal measures. The accusatory speech can analyze the circumstances that contributed to the commission of the crime and proposals for eliminating them.

If there is damage caused by the crime, the prosecutor also offers his solution to the issue of compensation. Speech of the victim - private prosecutor The speech of the victim - private prosecutor - is accusatory in its orientation and therefore can have the same content as the speech of the public prosecutor.

Speech of the defendant: sample.

Features of the event

Judicial arguments begin after all the evidence in the case is presented. If the prosecutor or another government organization acts as the prosecutor, then during the debate he presents his conclusion on the case under consideration.

The debate begins after the judge announces it. Any additional materials or explanations are requested in advance. Only after this do the actual speeches of the participants in the process begin.

Their features include:

the prosecutor speaks first, and in practice there are often cases when a government representative is not prepared because he replaced another prosecutor literally before the meeting, which leads to the need to postpone the process;
the purpose of the prosecutor's speech is to substantiate the charges brought against the defendant, and at the end it indicates the need to impose the maximum punishment for the criminal act;
the defense attorney speaks after the prosecutor, and his speech is aimed at whitewashing the defendant and asking for a minimum sentence;
The lawyer must point out mitigating circumstances and features of the defendant’s life, for example, information about dependents, financial situation, health and age is provided;
if the injured party is present at the meeting, then the citizen can speak during the debate, and the victims do not always fully support the side of the accuser, and often people ask for compensation for moral, material or physical damage resulting from the crime committed by the defendant;
then the defendant, who is considered the main character of the entire trial, is given the floor, and he is offered the opportunity to express his opinion not only during the debate, but also at the very end of the meeting;
Defendants usually talk about admitting their guilt, repentance, and also often apologize to the victims, mention mitigating circumstances and indicate their financial and physical condition.

Defendants may refuse to participate in the debate or have the last word.

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Code of Criminal Procedure of the Russian Federation), there are no signs of a crime in the act (clause 2, part 1, article 24 and clause 3, part 2, article 302 of the Code of Criminal Procedure of the Russian Federation), it has been proven that the defendant is not involved in the commission of the crime (clause 2, part 2 Article 302 of the Code of Criminal Procedure of the Russian Federation). Based on lawyer's ethics, a lawyer, when carrying out a defense, must follow the position of the defendant, independently choosing the means and tactics of defense.

Judicial debates in criminal proceedings Including: the social danger of the crime, the actual circumstances of its commission, the consequences that occurred (moral, physical or property harm), legal assessment of the crime (application of the norms of the General and Special Parts of the Criminal Code), circumstances mitigating or aggravating the punishment, the identity of the defendant or the victim, the reasons and conditions that contributed to the commission of the crime.

In such a situation, the main part of the speech should be devoted to an in-depth analysis of the evidence in the case from the point of view of the correct qualification of the crime. The defense attorney has the right: a) to ask for the defendant’s actions to be reclassified from an article with a more severe sanction to an article with a less strict sanction; b) challenge individual qualifying circumstances of the accusation; c) request the application of a newly introduced or amended provision of the Criminal Code, the sanction of which is less strict than before.

The defense attorney must also raise questions about the identity of the defendant (his characteristics); about mitigating circumstances; about the causes of the crime and others. The position on the acquittal of the defendant. The defense attorney takes this position when: a) the crime has not been proven; b) the act does not constitute any crime; c) the defendant’s participation in the crime has not been proven.

Making a court decision

After the judicial debate, the court announces the end of the trial and retires to the deliberation room.

Having returned from the deliberation room, the presiding judge or one of the judges (if the case was considered by a collegial composition of the court) announces the court's decision on the case. As a rule, only the operative part of the court decision is announced. In this case, the presiding judge is obliged to inform the participants in the trial when they can familiarize themselves with or receive a reasoned decision of the court in a civil case.

In accordance with the provisions of Art. 199 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Procedure Code), the court may postpone the preparation of a reasoned decision for a period of no more than five days from the date of the end of the trial.

If any of the persons participating in the case were not present at the court hearing, they must be sent a copy of it in final form within five days from the date of the court decision on the case.

Features of debates during appeal and cassation

If cases are heard in the court of cassation or appeal, the procedure is carried out in the same way as in other courts of first instance. Therefore, during the proceedings, an opportunity is offered for the parties to argue. But practice shows that during appeal and cassation, participants refuse to express their opinion or there is simply not enough time to implement this stage.

Reference! People filing appeals and cassations remain dissatisfied with the judge’s initial decision, so real quarrels, random shouting and other violations are revealed during the debate, so the judges simply skip this stage.

The judges argue that people who disagree with the decision of the trial court have already expressed their opinion in objections or reviews drawn up in writing, so there is no need for oral additions. If the judge decides to hold a debate, then the appellant or cassator speaks, namely the persons who wrote the complaint.

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Is participation required?

The opportunity to express their opinion at a court hearing is a right, not an obligation, of the participants. Each person may abstain if he has nothing to say or cannot add any information on the merits of the matter under consideration.

Judicial practice shows that experienced lawyers often refuse to speak, but only in the easiest cases , where it is already clear what decision the judge made, so further debate is considered pointless.