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Under the German inquisitorial trial system, judges and public
pro-
secutors sometimes criticize the tactics used by defence counsel
and refer to them as conflictive defence. But conflictive defence is
necessary: there must be a conflict between the state's power to
punish and the presumption that the defendant is innocent. And
we must not try to avoid this conflict. A lawyer who is not prepared
to argue out this conflict until it is resolved, at any and every neces-
sary time and for any and every necessary reason, is not suited to
act as a defence counsel.
This is not to say that the conflict needs to be argued out in any
particular way. The two sides may reach an early agreement about
the proceedings and the outcome, and this may be the right solution
to assist one defendant. But for another defendant, the defence
counsel may have to argue out the conflict, and, to quote the great
jurist Max Alsberg, to gain a hearing for the unheard of, to counter
the state's high-and-mighty, rash reaching for the truth, and to this
end, if it serves to ascertain the truth, may even have to let himself
be carried physically from the courtroom (the writer knows whereof
he speaks).
In the interests and service of his client, the criminal defence lawyer
must be able to do both and must practice both, if possible at the
same time: he must conduct open discussions and attempt to find
a solution in this way. But in the not unusual case that he does not
reach his main goal by conciliation, he may not shy away from the
path of open confrontation. A defence counsel who is conditioned
only to seek agreement will eventually be obliged to accept a bad
deal, and one who only seeks conflict will overlook the possibility
of what might have been a far better result and so will not be able
to grasp this opportunity that can be attained only through
consultation.
If we wish to preserve the dignity even of those who are under
suspicion, and perhaps especially of them, we must grant them
all lawful possibilities of defending themselves, by use of the
measures that appear to them to be right, against the threat of
a criminal sanction.
(Eberhard Kempf, Stuttgarter Zeitung,
06.11.2000)
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