The strategy of a good defence lawyer
by Rechtsanwalt Dr. Tobias Rudolph
Criminal defence is art and fight. A good defender is usually a specialist lawyer for criminal law, i.e. has special knowledge of criminal law and criminal procedure law. But that is not enough.
A successful defence against a criminal indictment requires more than just excellent legal knowledge. You need a strategy. No one will successfully climb Mount Everest without first thinking about the obstacles that will arise on the way to the summit. The same is true for the way to acquittal, suspension of proceedings or probation.
A good defence lawyer leaves nothing to chance.
1. An illustration of a poor defence strategy
In spring 2018, the Danish submarine designer Peter Madsen provided an example of a poor defence strategy. He was charged with the murder of a journalist who had died under mysterious circumstances.
Peter Madsen, who is said to be a highly intelligent psychopath, was already known before the trial as a brilliant submarine and rocket designer. The creative technician, who had dropped out of his engineering studies, provided an impressive example of what a bad defense is with his testimony at the trial.
As a builder of submarines and missiles, Peter Madsen’s secret of success was the Trial and Error system. He tried things out tirelessly and with great passion. When he encountered a problem during construction, he tried again. Again and again. Until the problem was solved and he had made some progress on the road to success. Peter Madsen did not stay long with scientific research or theories. He was a man of action. No other has achieved so far with so little financial and personnel support in submarine and rocket construction as he has.
When on 11.08.2017 the submarine built by Madsen himself, the “Nautilus”, sank south of Copenhagen into Køge Bay, only Peter Madsen could be saved. The young journalist Kim Wall, who had also been on board, had disappeared. It was known that she had boarded the submarine on the same day with Peter Madsen to write a report about his unconventional methods and successes in submarine construction.
In his statements to the police, Peter Madsen now did what he had done successfully for years as an engineer: When he encountered a problem, he quickly adapted his strategy. At first, he claimed to have dropped the journalist off on one of the peninsulas in Copenhagen Bay before sinking. Then traces of the woman’s blood were found inside the sunken submarine. Peter Madsen adapted his statement and said that the journalist had died in an accident on board; he had buried the body on the high seas.
Murder of journalist Kim Wall
A few days later, when the woman’s body was found in Copenhagen Bay, the designer adapted his story. Now he stated that the journalist had fallen on her head “with full force” during the journey and died in the process. When forensic examinations finally showed that the body had no injuries that could be reconciled with this representation, he tried a new variation. This time he claimed that Mrs Wall had died of carbon monoxide poisoning in the submarine. He continued to deny that he had anything to do with her killing. When it was proved by forensic medicine that the corpse was dismembered shortly after the death, he admitted the disturbance of the peace of the dead. He denies the murder to this day.
Would you have believed Mr Madsen?
The pure facts were thin. A submarine had sunk. A woman who had entered the submarine a few hours earlier had disappeared. Her body was found a few days later.
These facts alone did not in themselves allow for the conclusion that Peter Madsen was the murderer. By his constantly new, contradictory and the facts adapted explanation attempts, he has himself, however, punishably his own grave dug.
The technique of trial and error, which led to ingenious successes in the art of engineering, proved to be a devastating defence strategy in a criminal trial.
2. What could have been done better in defence?
Keep silent. Wait for the right moment. Waiting for the right moment. To present a plausible story that can be reconciled with all the facts. To have a feeling for how a judge thinks. And a goal. Mr Madsen obviously had no clear strategy.
“If you don’t know the port you want to sail into, no wind is the right one for you.”
(Seneca)
Such a spectacular murder trial does not, of course, reflect the everyday life of a criminal defence law firm. Especially not those of defence lawyers who are mainly active in tax and commercial criminal law. But much of what was obviously done wrong here can also be done better in everyday proceedings.
3. Successful Defence Strategies
Whoever is accused for the first time in criminal proceedings usually does not know what to expect.
There are many ways to bring a house down.
There are just as many ways to successfully ward off an indictment in criminal proceedings.
The task of an experienced defence lawyer is to develop the best tactics. After analysing the facts and the legal situation, it is important to develop a clear defence goal.
In the following some typical defence approaches are shown, which can lead to the fact that a criminal procedure is stopped or ends with an acquittal. In order to find out which goal is the right one in your case, you need experience, courage, assertiveness and sharp judgement. Above all, however, one thing is important: the person it is all about. A good criminal defence always emerges when client and lawyer work together optimally.
Overview
(a) The statement by the accused
(b) Experts in criminal proceedings
(c) Incorrect testimony of witnesses
d) Intent and negligence
(e) Self-defence and state of emergency
(f) Prohibition of criminal exploitation
g) False confessions
(h) Prohibition of double jeopardy (‘ne bis in idem’)
(i) Presumption of innocence (‘in dubio pro reo’)
j) Statute of limitations in criminal law
(a) The statement by the accused
The famous American defence lawyer and Harvard professor Alan M. Dershowitz said that only 20 % of the defence lawyer’s fee was for legal work. 80 % of the fee was the appropriate consideration for the lawyer’s expert advice as to whether the defendant should engage in the matter or not.
This thesis is certainly exaggerated. However, it accurately expresses the importance of the defendant’s admission as the key to success.
Typically, experienced defence lawyers first advise silence at the beginning of a trial. There is a good reason for this. Because premature attempts to explain usually do not lead further. Also the promises of police officers that an early confession is a “better confession” are rarely fulfilled. If an accused person decides in the course of proceedings to make a confession or to provide further clarification assistance in accordance with § 31 BtMG (so-called leniency programme), this should be done after careful reading of the file and joint strategic planning with the lawyer. The correct time plays just as much a role as the defense goal. Just as a card player plays out his ace when it has the most effect, a confession should be made at a time when it is already foreseeable that it will have the desired positive effect on the further course of the proceedings.
But even if the allegations are contested, it always makes sense to prepare the statement carefully. In order to convince a court of the innocence of the accused, it usually takes more than mere silence. Rather, judges are most willing to change their mind if new facts can be presented that are likely to change the perspective of the prosecution’s hypothesis.
(b) Experts in criminal proceedings
Expert opinions play an increasingly important role in criminal proceedings in the selection and evaluation of the facts on which a court has to decide.
The task of an expert is to impart special knowledge to the court. In traffic accidents, for example, experts determine the speed of vehicles or the impact angle of a collision. If alcohol was involved, the blood alcohol level plays a decisive role. If a perpetrator suffers from a mental illness, a psychiatric expert must assess the extent to which this illness affects the freedom to act and make decisions. In Internet criminal law, for example when accused of possessing illicit child pornography, IT experts often play the central role in the proceedings. In the case of documentary offences, signatures are compared scientifically.
Increasingly, investigating authorities are also making use of the help of science, which is typically not expected in criminal law. In the murder case of Peggy Knobloch, for example, the press reported that an expert for the analysis of plant pollen had found the trace of a suspect.
“Whose bread I eat, his song I sing”
(Martin Luther)
A good defence lawyer does not leave the selection of the expert to chance. It must be ensured that the court does not select an expert who is dependent on court orders.
In some cases, the road to success also leads to the appointment of an expert of one’s own. The criminal defence lawyer is not only expected to have imagination, but also an overview of the technical and scientific possibilities of expert opinions. An example for an “original” but promising defence strategy can be a visualization of the course of events. Nowadays not only dragons and dinosaurs can be brought to life on the computer with comparatively little effort. A well-done graphic animation, with which a course of events is “brought to the court’s attention”, can sometimes achieve much more than a thousand words.
(c) Incorrect testimony of witnesses
Witnesses are by far the most unreliable means of evidence in criminal proceedings. Judges and public prosecutors are also aware of this. In practice, however, the necessary consequences are not always drawn from this finding.
Contrary to popular belief, a lying witness is not easily recognizable. For example, if someone is sitting on the witness chair and sweating, this is a normal reaction to an unpleasant and unfamiliar environment. Conversely, cold-blooded liars often give the impression of sovereignty and often even appear sympathetic. Even with the modern methods of science, it is practically impossible to tell whether a person is telling the truth by his behaviour, origin or history. Even lie detectors are regarded by the courts as inadmissible evidence – although they could (and should!) contribute in individual cases to save innocent people from an unjust conviction.
Witnesses who deliberately lie in court are the exception anyway. They are often unmasked – because their involvement cannot be reconciled with the objective facts.
The most reliable method of exposing false statements is content analysis and comparison with objective facts.
This also and especially applies in cases where witnesses unintentionally say the untruth. This happens much more often than one might think. The human brain is extremely error-prone. It therefore does not even require malicious suggestions or influence to produce false memories. These can also arise when, for example, a witness is under particular pressure.
In one experiment, an actor dressed in dark clothes ran out of a house. Several passers-by could see him. If one asked these passers-by whether they could describe the person who had just walked past them, the answer was usually that this was not possible. The witnesses told the truth: they had no reason to pay attention to the man passing by.
When the experiment was repeated in exactly the same constellation, the witnesses were asked the question:
“A child had just been killed in the house. The murderer ran past them here a minute ago. Can you describe him?”
Although it was documented by cameras that the passers-by had in reality paid no attention at all to the passing actor, the witnesses were now subjectively able to give detailed descriptions of the man – which did not correspond to reality at all!
The witnesses were sure they were doing something good. They did not realize that their memory was playing a trick on them. Instead of recalling “a film from memory,” the witnesses unconsciously activated memories from a corner of their brain. These images had absolutely nothing to do with reality.
Such failures of the human brain are often the cause of devastating wrong decisions by courts. A defence lawyer must work early and vigorously to ensure that false memories do not become the basis of a false conviction.
An experiment that was carried out on the occasion of a Nuremberg case is reported here:
A famous experiment on the inadequacy of human perception can be traced here:
d) Intent and Negligence
Many criminal proceedings essentially revolve around the question of whether a suspected offender acted intentionally. In legal terms, intent is defined somewhat superficially as “knowledge and will of the act”. The standards applied to the proof of intent are often much lower than one would expect.
Evil tongues claim:
Intent takes place in the head of the judge. Not in the head of the offender.
This cynical escalation has a true core. An efficient defence strategy will therefore never be satisfied with saying “I didn’t know that” or “I didn’t foresee that”. It is more promising to concentrate early on the objective facts and the exact interpretation of the law.
For example, when it comes to accusations of tax evasion, it has to be worked out that entrepreneurial structuring is permissible for tax purposes. When it comes to the accusation of bodily injury, the question must be investigated as to whether a certain injury may also have other causes. When accusing the person of unlawful removal from the scene of the accident, the defence must concentrate on how loud “a bang” of a collision was. If it is possible to convince the court that a collision between two cars could not be heard from inside the vehicle, the judge will also believe that
(e) Justification: Self-defence and state of emergency
An act justified by self-defence is not punishable by law. However, self-defence is not the only justification that leads to the exclusion of criminal liability in Germany. For example, the justifiable state of emergency (§ 34 StGB) is often overlooked. This paragraph can be invoked, for example, by those who make unauthorised secret sound recordings when questioned by police officers if there is no other possibility of documenting unacceptable threats by the investigators.
However, it is not always easy to convince a court that a self-defence situation existed in everyday proceedings, such as fights between young people. In practice, Justitia is not as blind as theory requires. For example, if police officers claim that an accused opened fire when he was arrested, they are believed in doubt. If, on the other hand, the defendant claims that the police officers opened the exchange of fire, then it will take enormous effort on the part of the defence to prove this claim.
In a case recently decided by the Cologne Regional Court, the question was who shot first. Police Special Operations Command (SEK) officers had opened fire on a suspect who was sitting in the car and shooting back. After a long sensational trial, the prosecution had to admit that the defendant’s account was correct – and the police had lied in court. This was also confirmed by the Federal Supreme Court.
(f) Prohibitions on exploitation under criminal law
Prohibitions on exploitation play a far greater role in legal education than in the practice of a specialist lawyer for criminal law. Nevertheless – or precisely because of this – these are sometimes overlooked by the prosecuting authority. Then the defence lawyer is called upon to work towards ensuring that inadmissible evidence is not collected or at least not used in court. In the main hearing, corresponding objections against the exploitation are to be recorded.
In terms of content, a prohibition of exploitation exists, for example, if the provision of § 136a StPO has been violated. Accordingly, it is forbidden for a police officer to torture, threaten or deceive an accused person or witness during an interrogation. Statements made under inhumane conditions are also unusable.
Violations of the judges’ reservation during house searches only lead to a criminal prohibition of exploitation under special circumstances. The same applies to blood samples taken for traffic offences which were not carried out by a doctor.
Prohibitions of exploitation have a greater practical significance in commercial and tax criminal law. The background to this is that, for example, managing directors in insolvency proceedings are legally obliged to provide information to the insolvency administrator – even if they disclose circumstances which could pave the way to a conviction for the delay of insolvency. Such information which has been compulsorily disclosed may not be used in criminal proceedings (cf. § 97 Abs. 1 S. 3 InsO). Similar mechanisms apply in criminal tax law (§ 393 AO). Here, too, the statutory prohibition of exploitation is the compensation for the fact that citizens are forced to incriminate themselves.
g) False confessions
False confessions are not so rare. Many defendants who are exposed to police interrogation for several hours lose their nerves. In a state of emotional exhaustion, the brain sends the distress call “I want to get out of here, no matter how”. This fatal short-circuit in the brain leads to the fact that one supplies the officials those statements, which they want to hear straight, after the slogan “yes, yes … so it will have been already.”. In the minutes of the investigating officers this then reads later like a fluid description of the facts of a confessed perpetrator.
In recent years a number of spectacular cases have become known in which false confessions have led to devastating miscarriages of justice. According to police records, the accused family members confessed, in the case of farmer Rudolf Rupp, that they had “dismembered the family tyrants and thrown his body the dogs”.
A few years later – after the “confessed perpetrators” had already been sentenced by the Ingolstadt Regional Court – it turned out that these statements could not be true. The missing farmer was found dead, but physically intact, in the Danube. Only after some back and forth did the criminal proceedings resume with subsequent acquittal.
Even in the case of Ulvi Kulaç, who had already been sentenced to life imprisonment by the Hof Regional Court for the murder of the missing nine-year-old Peggy Knobloch, it later transpired that his confession – on which the conviction was based to a large extent – could not have been correct. It also turned out in the subsequent retrial (which ended with an acquittal) that the mentally retarded accused had ultimately bowed only to the pressure of the police. He himself would not have had the intellectual capacity to carry out what the police dictated to him in the minutes.
Confessions made under pressure also play a role when a defendant in the first instance enters into a lazy deal in court in the hope, for example, of being released from pre-trial detention. If the defendant decides in the course of the subsequent appeal proceedings to fight for his right and for the truth, then under certain conditions the confession from the first instance is no longer legally usable.
As a result, a confession once made is not always the last word. In order to get a court to get an unbiased new picture of what is going on, however, a great deal of defensive effort is required. It is better to work with a clear concept right from the start and to think carefully about when and how to get involved.
(h) Prohibition of double jeopardy (‘ne bis in idem’)
No one may be punished twice for the same offence. The ban on double jeopardy, which goes back to the Latin legal principle “ne bis in idem”, often plays a role in criminal proceedings and is rarely discussed.
It is relatively easy to recognise a violation of this principle of law, which has constitutional status and is also laid down in the European Convention on Human Rights (ECHR), if a first conviction was handed down in Germany. Then, in a second criminal proceeding, the question arises whether it is “the same act”. It is not always easy to answer this question. If, for example, an entrepreneur has been convicted of withholding social security contributions (§ 266a StGB), it is questionable whether a conviction for tax evasion is also possible. Similar problems can arise if someone has been convicted of corruption offences, but not for the evasion of income tax that often accompanies this (cf. § 4 Abs. 5 Nr. 10 EStG). In such a constellation, a defender must above all have a good command of the legal tools of the trade.
It becomes more complicated if a previous conviction has taken place abroad. Here, Article 54 of the Schengen Convention (SDÜ) stipulates that criminal prosecution in another state that has signed the international agreement is fundamentally excluded.
The constellation is strategically challenging for a defence lawyer if criminal investigation proceedings are pending in parallel in several states without a conviction having already been handed down in one or the other. The first question that arises here is whether the respective allegations are actually identical or overlap. In addition, it is important to look ahead and see whether it makes sense to accept a conviction in one state in the hope that this will lead to a stay of proceedings in the other. This makes sense above all if it is foreseeable that the punishment will be milder in one country than in another.
In such constellations, it often makes sense to cooperate with foreign colleagues in addition to having a foresighted view of the future. A good defence lawyer must think across borders.
(i) Presumption of innocence (‘in dubio pro reo’)
The accused enjoys the benefit of the doubt. Everyone has heard of the legal principle “in dubio pro reo” before. The underlying presumption of innocence is the cornerstone of any fair criminal procedure.
However, people’s ideas about when a “doubt” can be spoken of are sometimes very far apart.
An example of this is the trial of meteorologist and television presenter Jörg Kachelmann. If one were to make a nationwide survey, a third of the population would probably still be convinced that Mr. Kachelmann is guilty of sexual assault against his former companion. The Public Prosecutor’s Office also held this position to the end – even after it had long been clear that the only witness for the prosecution was involved in contradictions and had lied about essential points in a statement against a constellation of statements.
The art of a successful defence lawyer is to ensure that the presumption of innocence does not degenerate into a question of faith. Only by meticulously working out the facts speaking in favour of the accused can an acquittal be fought for.
A defense strategy that relies naively on “You can’t prove anything to me anyway” is doomed to failure from the outset.
j) Statute of limitations in criminal law
The regular limitation period in criminal law is five years. In the case of particularly serious offences, the period is extended to ten years or even longer. Murder and genocide are never time-barred.
A distinction must be made between the so-called limitation of prosecution and the limitation of enforcement. This refers to the period during which a person who has already been sentenced can still be arrested or a fine still has to be collected. After a few years have elapsed (for example, if the offender was fleeing abroad), a custodial sentence that has become final can no longer be enforced.
In criminal law, the statute of limitations must be examined ex officio. This means that the public prosecutor may not even bring an action if a criminal offence has become statute-barred. A court may not convict if the limitation periods have expired. It is the criminal defence lawyer’s task in these constellations to ensure that nothing is overlooked.
A particular challenge for the defence strategy is when the statute of limitations has not yet come into effect but is imminent in the foreseeable future. It is part of a skilful tactic to keep this in mind. This applies in particular if other claims also become statute-barred parallel to the criminal statute of limitations, for example civil law claims for damages and / or tax claims of the tax office. In particular, the interplay of tax and criminal statute of limitations is very complex, but also offers starting points for a good defense.
4. Conclusion
There is not the one way to the goal of a successful defense in criminal law. But there are many milestones that should be addressed at the beginning of strategic planning. If one of these milestones can be achieved, it is not far away from a suspension of proceedings or an acquittal.
