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Can a lawyer defend a confessed client as innocent? The forensic union webinar

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Can the lawyer defend those who know they are guilty by claiming their innocence? This is the very provocative title of the webinar organized by the Salerno Forensic Syndicate and scheduled for Monday 14 March. A question that in times of uncertainty with not just legal delays and the courts always in the eye of the storm, certainly makes even the layman reflect, that perhaps, from outside those classrooms, that question is also post, despite having little familiarity with a concept as fundamental as it is controversial in the venues of the criminal trial: truth.


To explain the reason for the title and conference is Michele Di lesulawyer of the Court of Lagonegro and Professor of Administrative Criminal Law at the Pegaso Telematic University: “The one chosen is a provocative title – he immediately clarifies – but we will start from it to give more perspectives, polyforms of the protagonists of the criminal trial: the defense, the public prosecution and the judge “.

But how do you get to the truth?
“It is certain that when juridical experience presents a multitude of norms, doctrines and juridical positions, any criticism would be ineffective, it is therefore necessary at this point to refer to those principles which form the basis of law in the West and to the constitutional charter. In fact, the constitutional norms on the subject of criminal jurisdiction will guide us in the reconstruction of the truth: we can say that the truth is not in an absolute sense, it is reached in the sphere of criminal jurisdiction, in a public contradictory between accusation and defense “.

But what truth?
“It may seem strange to those who are not in the trade, but from the criminal trial the truth is not that in an absolute sense, but that which is reached by implementing the guarantee model provided for by the rules of the criminal procedure code and by the constitutional charter, that is: no ‘it is punishment, without judgment; there is no judgment without accusation; there is no accusation without proof; there is no proof without defense. These four axioms are those of the guarantee process ».

But does the criminal trial lead to a truth?
«Historical truth? Perhaps. Procedural? Always. But they don’t always coincide ».

In what terms, then, is the criminal trial useful?
“To think that one can arrive at historical truth is naïve. There is the truth of the public accusation: if I blame you, I have the burden of proving that the fact I accuse you of falls within a specific crime; the defense will propose “its” truth by refuting the thesis / truth of the prosecutor, introducing sources of evidence that in fact contrast the “truth” of the prosecutor; at this point the judge will have to deliberate on what has been introduced and produced in contradiction by the parties in the trial, according to the procedural rules, in fact, favoring one thesis (truth) rather than another. The only limitation that the judge has: the motivation. In the sense that in favoring one thesis rather than another, the judge will have to “explain” according to the rules mentioned above and according to a logical reconstruction of the reason for that decision. The result will be the truth. But what truth? That in an absolute sense? I would say no. Truth of the trial certainly, but it will always be approximate. The truth in an absolute sense is known only by God ”.

But let’s get to that question of the title, the one that hypothesizes a lawyer, a confessed client and the possibility of defending him as innocent. In a nutshell, can it be done?
«So let’s be clear: if a person goes to a lawyer and why he wants to be defended. Technical defense is provided for in our constitution and in our code of criminal procedure. It is not possible to hold a trial in Italy without a lawyer. A confession is usually given by the offender to the judicial authority and not to the lawyer. What interests us is to know what behaviors to assume from the point of view of the defense, and therefore deontologically speaking, when the client “confesses” to the firm of the trusted lawyer. Therefore, apart from the defense in a technical sense to be assumed from the very first stages of the criminal proceedings, the important thing is the ethical aspect in order not to commit disciplinary offenses or worse still, crimes by the defender and how the defense can still contribute to the achievement of the truth. Let’s clarify one thing immediately: the development of the defensive thesis can never be contrary to the will of the client, and above all it must lead to a credible thesis that is naturalistically speaking, logical and legally valid, thus refuting the investigations collected by the Public Prosecutor. with the truth in an absolute sense? The answer cannot be clear-cut. Certainly a lot, a lot with the procedural truth ».
Therefore, the subject of the conference will be to discuss the visions of the protagonists of the criminal trial, discuss the ethical and legal limits of the parties, also including that of the judge who is in the “super partes” criminal case if there are any, and which ones, and how much these limits match. or clash with the truth. It will therefore be the trial parties who, with respect for the procedural rules, will give life to the “fair hearing” that is, a fair trial that will perhaps result in the much desired truth: “Here, we will discuss all of this in our provocative webinar: I conclude by saying that perhaps if there was more collaboration between the parties, the judges would have an easier life in issuing sentences as close to the truth and the trials perhaps would not last years, with all due respect for citizens and the justice service “.

The webinar will be attended by: Silverio Sica, President of the Council of the Salerno Bar Association; Francesca Di Renna, Secretary of ANF Forensic Syndicate of Salerno; Raffaele Carfora, Head of the Territorial Training School, Penal Chamber Santa Maria Capua Vetere; Saverio Vignola, President of ANF Salerno; Pasquale Materi, President of the Criminal Section of the Court of Appeal of Potenza; Luigi Levita, Deputy Military Attorney Naples.