Why not all pre-trial investigation materials reach the court, how and when to counter the prosecution’s position, why the opening statement is not a formality but a tactical tool, when the defense should submit a written position, and when it is better to remain silent?
Member of the NAU Committee on Criminal Law and Procedure Kyrylo Lehkykh in the latest podcast “Expert Opinion” shared insights on how to effectively work with evidence during a court hearing.
In particular, the speaker emphasized that witness or victim interrogation protocols drawn up during the pre-trial investigation stage do not automatically become part of the court case materials. They cease to exist for the court once the indictment is submitted. Exceptions are only in cases provided for by Articles 225 and 615 of the Criminal Procedure Code. In most situations, information obtained during the pre-trial stage becomes evidence only after direct questioning of the person in court.
Similarly, not all materials disclosed to the defense during case review end up in court. The prosecution may only hand over documents or evidence it deems relevant to substantiate its position. At the same time, the defense is not required to disclose all gathered information. Here, the defense has an advantage: the lawyer is not obliged to share with the prosecution data that may harm the client.
K. Lehkykh paid particular attention to the importance of the defense attorney’s opening statement. The court does not know all the case details as the defense does, so the opening statement is an opportunity to briefly present the defense’s version of events, agreed upon with the client, and outline the argumentation direction to be developed during the process.
When it comes to countering the prosecution’s position, there is no single procedural mechanism established by law. However, in practice, a sequence has been established: after the prosecution’s presentation, the defense has the opportunity to raise objections. It is important to do this immediately after the prosecutor finishes presenting specific evidence or a block of evidence—thus, both positions are recorded in the case materials.
Although there is no obligation for the defense to present counterarguments in writing, such explanations can be useful. They will definitely be considered by the court when making a decision.
Regarding the mechanism for declaring evidence inadmissible, according to the attorney, courts mostly do not issue relevant decisions in practice. Typically, the court only records the parties’ positions and states that it will assess the admissibility of the evidence in the deliberation room. This deprives the defense of the opportunity to exclude questionable evidence at an early stage.
Another practical question is whether the defense can refer to materials obtained by the prosecution if they are beneficial to the client but not submitted to the court by the prosecutor. K. Lehkykh emphasizes that decisions should be made individually in each case—only after consultation with the client. Such tactics may have a reverse effect and practically help the prosecution. However, if there is confidence that it will not harm the client and this position will be part of the defense strategy, it is permissible.
At the end of the podcast, the speaker explained that the defender’s speech in debates should be substantive yet concise. It should combine an assessment of both prosecution and defense evidence. The lawyer’s task is to help the court see the full picture of the case and draw the right conclusions. The main rule remains unchanged: not to harm the client in any way.