A criminal defence lawyer intervenes when a person is involved in proceedings for an act that may constitute an offence, either as a suspect or defendant, or as an offended party. Knowing that an investigation exists, receiving a law enforcement document or a summons, being subjected to a precautionary measure or wanting to file a criminal complaint can raise very practical questions: should I make statements? Can I appoint a lawyer? What happens next?
In this guide, I want to clarify what a criminal defence counsel concretely does, without confusing different roles or reducing the defence to a presence in court. We will see why the work can begin before the trial, which choices depend on the procedural phase, and which elements help in choosing the lawyer consciously.
The role of defence counsel in criminal proceedings
The defence protects a precise position: that of the assisted person. If you are a suspect or defendant, counsel protects your right to know the accusation, participate in acts in the cases provided for, and assert favourable elements. Article 24 of the Constitution qualifies defence as an inviolable right at every stage and degree of proceedings; Article 111 adds decisive guarantees in the criminal trial, such as knowledge of the accusation, time to prepare, and the possibility of obtaining evidence in one's favour.
This does not mean constructing an identical response in every situation. The defence starts from the contested fact, the evidence already available, the statements made, the phase of the proceedings, and the concrete effects that may derive from the decisions. An accusation still to be verified during investigations requires different choices from a trial already scheduled or a sentence to be appealed.
The criminal lawyer can also assist the person offended by the crime. In this case, the purpose is not to defend oneself against an accusation, but to exercise the faculties recognised to the victim, file a report or criminal complaint when provided for, follow the proceedings, and assess whether to request compensation for damages in the criminal trial by joining as a civil party. Offended party and civil party do not automatically coincide: the former is the one who suffered the crime; the latter is the one who formulates a compensation claim in the trial according to the established rules.
A lawyer cannot represent people whose interests conflict in the same matter.
Defence counsel does not replace the judge, does not decide if a person is guilty, and cannot promise a result. Their task is to make adversarial proceedings effective: bringing to the attention of the judicial authority the arguments, documents, and relevant evidence for the position they assist. The principle is linked to the guarantees of the fair trial provided for by Article 111 of the Constitution.
From preliminary investigations to trial: where counsel can intervene
Defence may already be necessary during investigations, that is, before a judge holds a trial. In this phase, the public prosecutor and judicial police gather elements to establish whether to request dismissal or exercise criminal action. The person under investigation does not necessarily have to wait for a summons to trial to appoint a defence counsel.
The appointment of a retained counsel allows indicating the lawyer chosen by the interested party. Article 96 of the code of criminal procedure establishes that the defendant can appoint up to two retained counsels and regulates the forms of appointment. For those arrested, detained, or in pre-trial custody, the rule also allows a close relative to make the appointment until the interested party has done so. The reference is Article 96 of the code of criminal procedure.
Each act has a different meaning. An invitation to appear, an interrogation, a search, a seizure, or a notice of conclusion of investigations are not simple administrative communications. They indicate a phase and grant faculties that may have their own timelines. Before signing statements, handing over materials, or informally explaining one's version of facts, one must understand which act is being faced and with what qualification.
A particularly relevant step is the notice of conclusion of preliminary investigations provided for by Article 415-bis of the code of criminal procedure. If the public prosecutor does not intend to request dismissal, the notice informs the suspect and counsel of the contested fact and the deposit of the acts; the rule also provides twenty days to submit briefs and documents, deposit defensive investigations, request investigative acts or make statements, as well as to request interrogation. The deadline concerns those specific faculties, it is not a generic invitation to reply quickly. The current text can be consulted in Article 415-bis of the code of criminal procedure.
Defence strategy is not a pre-established formula
A defence strategy identifies objectives and steps compatible with the acts, it does not consist in automatically denying the accusation or postponing every choice to the trial. It may concern the reconstruction of facts, the identification of sources of evidence, the correctness of investigative activity, the legal classification of the fact, or access to procedures and institutes provided by law when the prerequisites exist.
The first useful distinction is between what a person remembers and what can be validly brought into the proceedings. A message, a photograph, a document, a recording, or the indication of a person informed of the facts can be important, but their value depends on origin, integrity, relevance, and acquisition methods. Not everything that appears useful automatically becomes evidence, and a document taken out of context can produce the opposite effect to the one hoped for.
The code provides for defensive investigations: activities through which defence counsel, the substitute, authorised private investigators, and technical consultants can gather useful elements, respecting limits and guarantees. They can, for example, gather information from persons able to report relevant circumstances, request documents from public administration, and document accesses or surveys in permitted cases. The persons heard must receive specific warnings and certain statements are not usable if acquired in violation of the rules. Active defence has precise forms, illustrated in the rules on defensive investigations.
A defensive choice may also consist in making no statements at a given moment, asking to be interrogated after having reviewed the available acts, proposing a different reading of the fact, or concentrating attention on technical evidence. Silence and statements are different options: choosing requires information on the content of the act, possible consequences, and the phase one is in.
Trial, alternative proceedings and decisions not to be confused
Trial is not the only possible path. Criminal proceedings can conclude in different phases: with dismissal, with an ordinary trial, or, if law and facts allow it, through alternative proceedings. Summary judgment, application of penalty upon request of the parties, suspension of proceedings with probation (messa alla prova), and oblazione have different prerequisites, timelines, and effects.
It is incorrect to consider an alternative procedure as an increasingly convenient solution or as an automatic admission of facts. Each option entails its own waivers and advantages. Some choices affect how the decision is formed; others require an agreement, a judge's assessment, or conditions linked to the type of crime and the person's position. The moment when the option can be exercised is equally important.
In ordinary trial, counsel formulates requests, participates in the formation of evidence in adversarial proceedings, examines or cross-examines the persons heard, and presents arguments on the reconstruction of facts and the application of law. The Constitution protects precisely the possibility of the accused person to confront statements against them and request the acquisition of favourable evidence. Defending oneself means being able to influence proceedings, not just receiving acts.
Some decisions remain with the client, whose presence or statements may also be relevant at specific stages.
If instead I assist an offended party, the assessment changes. One must distinguish the interest in reporting the fact, the need to preserve useful elements, any compensation claim, and the actual possibility of participating in specific phases of proceedings. The decision to join as a civil party does not replace public prosecution, which remains entrusted to the public prosecutor, but allows asserting the compensation claim against the defendant in the trial.
Retained counsel, court-appointed defence and legal aid at State expense
Court-appointed defence does not mean free defence. If a person does not appoint a retained counsel or remains without one, the legal system ensures the presence of a court-appointed defence counsel to guarantee the right to defence. However, this designation does not automatically place expenses at the State's charge: the cost normally remains borne by the assisted party, barring admission to legal aid at State expense.
Legal aid at State expense is an institute distinct from court-appointed defence. It depends on requirements established by law, in particular economic conditions and other applicable prerequisites for the individual case. It may also concern those who have chosen a retained counsel, provided the lawyer is enrolled in the lists provided for legal aid. The Ministry of Justice clarifies the distinction between the two institutes on the page dedicated to legal aid at State expense in criminal trials.
The choice between retained counsel and court-appointed counsel therefore concerns the appointment, not the constitutional value of the defence. In both cases, the lawyer must protect the assisted person's position. If you wish to make a retained appointment after a court-appointed designation, it must be formalised in the provided ways, avoiding the thought that a simple informal communication resolves every effect of the previous appointment.
How to concretely choose a criminal defence lawyer
The choice must start from the problem to be faced, not from generic formulas. It is useful to understand if immediate assistance is needed for an act, if investigations have already started, if a summons has been received, if a complaint is to be filed, or if the topic concerns the enforcement of a decision. Describing the phase precisely allows understanding what questions to ask from the first contact.
A concrete criterion is clarity. The lawyer must explain in understandable terms what role you have in proceedings, which acts are already known, which decisions are urgent, and which remain open. Understanding does not mean receiving certainties: it means knowing which facts could change the assessment and what consequences different choices entail.
Consistency between the case and the type of assistance requested also matters. A person facing an interrogation needs to immediately understand the rules of the act and possible options; someone who suffered a crime may need to distinguish between report, criminal complaint, protection of evidence elements, and compensation claim. It is reasonable to ask how communications will be managed and who the operational reference will be, without turning the interview into a request for promises on the outcome.
Bringing received acts helps immediately: summonses, minutes, measures, notifications, and documents reconstructing dates and facts prevent misunderstandings. It is useful to note the names of present persons, the order of events, and the possible existence of messages, videos, or certifications, without artificially modifying or selecting material.
To receive clear advice, explain any unfavourable facts as well, rather than sharing only what supports your position.
Frequently asked questions
Can I appoint a criminal defence lawyer before receiving a summons to trial?
Yes, the appointment can take place already during investigations. It is not necessary to wait for the trial if you have received an act, are summoned, or have reason to believe you are involved in proceedings. The appointment of retained counsel allows counsel to assist you in the provided phases and to receive acts intended also for the defence.
Is court-appointed defence free?
No, not automatically. Court-appointed defence ensures that someone who has not appointed a lawyer does not remain without technical assistance, but expenses are normally borne by the defendant. Legal aid at State expense is a different institute and requires admission when legal prerequisites are met.
Must I always answer questions from police or the public prosecutor?
There is no valid answer for every act. Before making statements, one must know in what capacity they are heard, what fact is contested, and what guarantees apply. A conscious choice requires distinguishing between spontaneous statements, interrogation, and other information requests, without relying on informal explanations.
What can defence counsel do after the notice of conclusion of investigations?
They can exercise the faculties indicated in the notice. Article 415-bis allows, within twenty days, submitting briefs and documents, depositing defensive investigation materials, requesting investigative acts, or requesting interrogation. The choice depends on the concrete utility of the initiative with respect to the deposited acts.
Can a criminal defence lawyer also assist someone who suffered a crime?
Yes, but with a different objective from defending the defendant. The offended party can receive assistance to evaluate a report or criminal complaint, know their faculties in proceedings, and decide whether to request compensation by joining as a civil party. The prosecutability of the crime and the phase already reached affect possible initiatives.
Essential references
To delve deeper into the constitutional principles of defence and adversarial proceedings, you can read Article 111 of the Constitution. For the appointment of retained counsel and faculties following the conclusion of investigations, Article 96 and Article 415-bis of the code of criminal procedure are relevant respectively.
A criminal act deserves prompt attention, especially when it contains a summons or indicates a faculty subject to a deadline. If you wish to clarify your position and which options are actually open in your case, you can contact me.