An effective defense at a criminal hearing is one that makes the court face the question it needs to resolve. A strong speech connects the facts, the evidence, the legal standard and the request. A sentence that moves the listener can make that connection visible, but it cannot replace a fact missing from the file or a result that has not been proven.
A hearing is also a communication setting. The order of speaking, the clarity of a question, the rhythm of the speech, the attitude shown when an unexpected answer is given and the timing of an objection all matter. The defense counsel's task is to use these channels so that the client's defense is genuinely heard and the evidence is examined in a way that serves that purpose. This article treats oral defense within that framework, from preparation to the final request.
On what legal basis is oral defense made?
Article 36 of the Constitution of the Republic of Türkiye and Article 6 of the European Convention on Human Rights (ECHR) are the basic guarantees of defense and fair trial. Under the Law No. 5271 on Criminal Procedure (CMK), the conduct of the hearing, questioning, explanations on evidence, discussion of evidence and the final word before judgment are governed by separate provisions. This distinction determines which power the defense may use at which moment. [1, 2]
| Stage | Legal basis | Concrete task of the defense |
|---|---|---|
| Conduct of the hearing | CMK Art. 192 | Stating a procedural request and, where necessary, asking the court for a ruling |
| Questioning of witnesses and experts | CMK Art. 201 | Clarifying the source of knowledge, the method and the uncertainty through direct questions |
| Explanation after a witness is heard or a document is read | CMK Art. 215 | Stating in time how a new matter affects the file |
| Collective discussion of evidence | CMK Art. 216 | Presenting a defense that addresses the prosecutor's opinion and the merits of the file |
| Use of evidence as the basis of judgment | CMK Art. 217 | Examining whether the evidence was put forward, discussed and obtained lawfully |
| Immediately before judgment | CMK Art. 216/3 | Making sure the right of the defendant present to the last word is exercised |
This structure does not require that the whole defense be left to the final speech. Information first disclosed by a witness can be examined by question while that person is being heard, and its importance can be explained afterwards. The defense on the merits, meanwhile, turns information that emerges at different moments into a complete assessment. The timing of the defense must be planned together with these procedural opportunities.
Persuasive power is built before the speech
Identifying the main question and the main thesis
A hearing plan should begin with the question "Which question do we want the court to resolve today?" Is it the re-hearing of a witness, an additional report, release, or a decision on the merits? Different requests may coexist, but the basis and priority of each must be clear.
The main thesis links the result to its reasoning. "We request acquittal" alone does not explain the thesis. "The identification on which the charge rests cannot be considered reliable unless the conditions of observation are clarified" shows which feature of the evidence is being discussed. The later parts of the speech must answer this question. Where the file contains more than one offence or defendant, a separate assessment is kept for each.
Preparing a one-page speaking plan
The working sheet may contain the main thesis, the priority points of discussion, the location of each point in the documents or the record, and the request sentence. Detailed legal research is kept ready separately. Thus the defense counsel can return to the relevant document in answer to a question without losing the way in a long text.
Beside each heading the following check should be made: "If this point is accepted, what changes in the file?" Giving a long time to a detail that changes nothing makes the decisive points harder to hear. On the other hand, the aim of brevity cannot be a reason to forget an independent ground of defense. Prioritising is not the same as giving up on scope.
Rehearsal is not memorising answers
Rehearsing the speech allows the lawyer to notice unnecessary repetitions, unexplained concepts and documents that are hard to find. The defense preparation article by Gürses Hukuk also stresses rehearsal and evaluation after the hearing. This suggestion cannot be applied by teaching the client or a witness answers contrary to the truth. [3]
In preparation with the client, it can be discussed how the hearing works, the client's rights and the client's ability to ask for a question to be explained when it is not understood. The client should not be asked to complete gaps by guessing. The defense counsel's legal interpretation must be kept separate from the client's knowledge of events. The aim of preparation is not to make accounts artificially uniform, but to let the person express what they know clearly and within the limits of their own knowledge.
Kayhan's review "Learning to Be a Lawyer by Rehearsing" (Hukukçu Olmayı Prova Etmek) treats creative drama in terms of legal education and professional conduct. Role-play, taking the floor and coping with conflict are educational methods that allow such skills to be practised. The structuring and feedback the author emphasises require that this method be carried out within the limits of legal content and ethics. [15]
This approach can be adapted to defense preparation as a short exercise. In the first round the defense counsel presents the main thesis and the request; in the second round a colleague asks a question about a strong counter-piece of evidence in the file. The assessment is not limited to whether the speech seems impressive: was the document reachable, was the question answered, was uncertainty honestly disclosed and was the request understandable? Such a rehearsal aims to improve the lawyer's own presentation without interfering with the testimony of a real witness.
What does rhetoric add to the defense?
The three means of persuasion in Aristotle's rhetorical analysis are explained through the speaker's credibility, the listener's emotional state and reasoning. Known as ethos, pathos and logos, this distinction is a useful framework for assessing oral defense. In modern criminal proceedings, the use of these means is limited by the rules of proof and fair trial. [4]
Ethos: building credibility through fidelity to the file
A lawyer's credibility shows in accurately displaying the page of the file, in not hiding the adverse part of a decision, and in asking for review of a technical matter they do not know. Saying "This record shows that the meeting took place; our objection concerns the inference drawn about its content" puts the discussion in its real place. Needlessly denying a minor fact can reduce the clarity of the main objection.
Logos: showing each step of an inference
It must be clear how one moves from a document to a conclusion. That the account is in the defendant's name shows that the defendant carried out the transaction; that they communicated with a person does not, in every file, show that the conversation had a criminal purpose; that they were at the scene does not alone show that they took part in the alleged act. The defense shows where the missing link lies and what data could clarify it. It also evaluates honestly the links that do exist.
Pathos: making the person visible
The effect of pretrial detention on the family, a person's health condition, or the consequences of an event for people can be described in a suitable context. But personal characteristics do not replace proof of whether the act was committed. The strength of a human account lies in its relation to the concrete legal issue and in its proportionality. Belittling what the victim has experienced, or trying to present the defendant as privileged only because of profession and reputation, upsets this balance.
How is a narrative built on the evidence?
Chronology, source of knowledge and uncertainty
The narrative places events in an understandable order. The basis of each important sentence must be identified: a document, direct observation, information from another person or a legal inference. If this distinction is not made, interpretation may be presented unnoticed as if it were the event itself. Clearly stating a point that remains uncertain strengthens the request for investigation.
Abdullah Teltik's article "From Cicero to Vergès" suggests that defense be considered in terms of narrative, evidence and the context of the trial. The question that can be carried from that discussion into current practice is within which narrative the evidence acquires its meaning. Changing the order of the narrative does not give authority to alter existing facts or to invent new ones. [5]
In a hypothetical example, a person who made a money transfer later continued to communicate with the other party. The charge may read this as the continuation of a plan formed in advance. The defense may, however, show the dates and the contents of the messages and ask that another explanation of the relationship be investigated. Saying that an alternative explanation is possible is different from saying it has been verified in the file. This distinction must be kept so that the burden of proof is not shifted onto the defendant.
Meeting the strongest form of the opposing view
Persuasive defense does not stop at refuting an easy claim the prosecution has not put forward. After saying "The basis of the charge is these two records and a witness statement", what these together show is discussed. It must also be examined whether three accounts drawing on the same source are really independent data confirming one another. Plurality and independent verification are not the same thing.
Using analogies and rhetorical questions with restraint
An analogy may be used to explain a complex relationship; it must not make the strength of the evidence appear greater or smaller than it is. A rhetorical question is effective when it is promptly followed by an answer based on the file. After "Is it clear who made this record?", the deficiency in the report and the examination requested should be explained. Multiplying unanswered questions is not, in itself, an evaluation of proof.
Managing cognitive risks through concrete examination
The relationship between fast, intuitive judgments and slower, controlling reasoning is among the research topics of legal psychology. The work of Guthrie, Rachlinski and Wistrich on judicial decision-making discusses how automatic assessments can be useful yet also lead to error. This literature does not allow anyone to know from outside exactly how a particular judge decides. [14]
The response available in the defense is to develop examination questions rather than attribute bias to a person. Data that support the first account are compared with data that do not fit it. Harm that arose later is separated from the conditions that could have been known at the time of the event. Instead of character generalisations such as "this person commits this kind of crime", the alleged act and the evidence about it are discussed.
In a hypothetical workplace accident, a technical fault seen after the accident and the information the person could access before the event are not the same thing. The defense may show warning records, the division of duties and pre-event inspections, each with its own date. The aim is not to exclude responsibility in advance, but to clarify on which information foreseeability is being assessed.
The same examination must be applied to the defense's own thesis. Searching only for documents favourable to the defense may leave adverse data unexplained. Having a colleague read the file from the opposing side can help detect gaps in the main thesis. In this way, cognitive awareness becomes a working method rather than a claim to decode the personalities of those involved in the proceedings.
Timely intervention and the Hybrid Rupture Defense
Fahrettin Kayhan's Hybrid Rupture Defense (Hibrit Kopuş Savunması) approach treats the intensity of intervention as a variable choice rather than a fixed attitude. The five-level model, running from full compliance to radical rupture, helps to consider when a lawyer should limit themselves to making a statement and when to raise a clear procedural objection. This is the theoretical model proposed by its author; its effect is not a proven formula of success in every file. [6]
In practice the decisive criterion is the right to be protected and the concrete need. A small terminological error may be corrected by explanation, whereas calling for a defense without giving the opportunity to examine a new report may require an express request concerning the right to prepare. The means to be used is determined by its legal basis first, before the severity of the speech.
Not leaving comment on evidence until the end
CMK Art. 215 gives the parties the opportunity to make explanations about a person who has been heard and a document that has been read. Kayhan's article on this provision emphasises the importance of short and timely intervention for the defense. [2, 7]
For example, if a witness has stated that they did not see the whole event, the defense counsel may follow this order: indicate the relevant part of the statement, show how it differs from the earlier account, explain its importance for the dispute and state the necessary request. Each explanation does not have to become a long defense on the merits. It may be enough for the meaning of the new information to be opened to discussion without being lost.
A harsher intervention is not always more effective
The strength of an objection does not come from the number of repetitions or the loudness of the voice. It must be understood which right is restricted and how, what the request is, and why the answer given is considered insufficient. Recusal of a judge has its own special conditions; a negative interlocutory decision alone does not in every case show a problem of impartiality. Leaving the hearing cannot be used as an automatic persuasion technique either; the defense counsel's duties and the client's situation are assessed separately. [2, 8]
A calm defense does not mean that it has given up the objection, and a firm one does not mean that it seeks personal conflict. The professional aim is to allow the legal matter to be completed and decided.
Effective questioning of witnesses and experts
Asking witnesses for information, not verdicts
CMK Art. 201 gives the defense the possibility of putting direct questions in a manner consistent with hearing discipline. This power must not be confused with questions put by the defendant and the intervening party through the presiding judge or the judge. The Turkish arrangement does not mean that all the rules of cross-examination found in other legal systems apply in the same way. [2]
A question directed at a single fact makes the answer easier to follow. Instead of a compound question such as "It was dark, you were far away and you did not see the face, correct?", the distance, the lighting and the time of observation can be asked about separately. If there is a contradiction with an earlier account, the relevant section is identified and the witness is given the chance to explain the difference. A difference in a minor detail does not in itself show that the whole account is wrong.
"Is my client not innocent?" asks the witness for a legal conclusion. "For how long did you see the person's face?" investigates the basis of the knowledge. A witness's trembling voice, avoidance of eye contact or apparent confidence cannot by itself be used as a test of truthfulness. The question plan must rest on observable conditions and on the relation of the account to other data.
Asking the expert to explain the method
The central subjects of questions to an expert witness are the data used, the method, the assumptions, the probability of error and the limits of the result. Questions such as "Can this method distinguish the user's identity?" or "In what respect does the absence of the source record limit the result?" target the technical field, instead of asking "Is the defendant guilty?" The assessment of legal liability belongs to the court.
The Constitutional Court's decision in Sencer Başat and Others shows the importance of reasoned consideration of technical defenses that affect the outcome and of expert opinions. Within this framework the defense must state which part of the report the objection is directed at and why the examination it requests is necessary. The existence of an expert opinion alone does not mean that every objection must be accepted. [9]
Tension, silence and interruption: how are they managed?
Using communication theories for self-control
Kayhan also discusses courtroom interaction through approaches such as transactional analysis and dramaturgy. This perspective can offer a space for thinking that helps the lawyer notice automatic defensive or angry reactions. However, describing a participant in the proceedings as "childish", "authoritarian" or with another psychological label, based on a few behaviours, is not a reliable assessment. [10]
When a speaker is interrupted, it must first be understood what is being asked: the removal of a repetition, an answer to a particular question, or the ending of the defense? Then the concrete need can be explained. A hypothetical formulation might be: "This section concerns a lack of data that affects the outcome of the report. I would like to complete my request by showing two documents." If time is needed, the reason and the work for which it is needed should be stated.
Using silence to think and listen
Waiting for an answer to be completed after a question, checking a document rather than answering a difficult question, or pausing briefly after an important distinction can help to organise the speech. This communication choice is not the same concept as the statutory right to remain silent of a suspect or a defendant. The right to remain silent is a procedural guarantee; a pause in speech is an expression technique.
Delaying a request that must be raised within its time limit, or failing to follow an important procedural step, must not be turned into a loss of rights under the name of "strategic silence". The function of silence is to make the next word clearer; it cannot replace the necessary procedural step.
Directing criticism at the procedure, not the person
The European Court of Human Rights' decision in Nikula v. Finland is important for the protection of a defense counsel's criticism of the prosecutor's procedural choices in the case. The defense has a strong space for speech; the limits of that space are assessed together with the context of the statement and the subject it is directed at. [11]
When a request is thought to have been rejected without reasons, it can be explained which defense opportunity the decision affected. Showing the relation between a procedural act and its result, rather than reading personal intent into it, makes an objection more reviewable. What cannot be said when the defense is cut off or limited, and the record of the request and the decision given, matter.
Defense on the merits and a strong closing
The response to the prosecutor's opinion must address the whole file
The defense on the merits should not be limited to answering the sentences of the prosecutor's final opinion (mütalaa). The alleged act, the totality of the evidence, the legal characterisation and the procedural objections are assessed together. Baran Doğan's review of the subject also covers this scope and the question of time for preparation. [12]
If a new or comprehensive assessment is needed, the request must be made concrete. The report to be examined, the new legal issue to be studied and the reason why adequate defense cannot be made in the present situation are explained. There is no automatic speaking time or preparation timetable for every file. The opportunity available for defense is assessed according to the characteristics of the file. [1, 2]
The three tasks of the closing
A closing should recall the decisive point of the discussion, show its legal consequence and state the request clearly. It is not obliged to open a new emotional narrative or to summarise the whole petition again. If there are several requests, it must be stated which is primary and which is conditional.
The short section below is an example of narration for a hypothetical file in which identity is disputed; it is not a quotation from an actual defense:
“The witness stated that they saw the person only for a few seconds, from the side. The image report also states that identification could not be made from the face. Taken together, these two data do not remove the uncertainty we have shown as to whether the alleged act belongs to the client. Since it has not been established that the charged offence was committed by the client, we request acquittal under CMK Art. 223/2(e).”
The strength of this example lies not in reaching a definite result but in clearly connecting the data to the request. If there are other proofs in the real file, they must also be addressed. Where a technical record still needs to be collected, its place in the request must also be determined.
The defendant's last word is a separate right
Under CMK Art. 216/3, the last word before judgment is given to the defendant who is present. The defense counsel's closing speech does not replace this personal right. The defendant is not obliged to turn what they wish to say into a persuasive text written in advance by the lawyer. The person must be informed of their rights and be able to make their own statement. [2]
Written defense and the record keep the word going
After the oral presentation, the dispute must remain traceable in the file. CMK Arts. 221 and 222 concern the hearing record, and Art. 230 concerns the reasoning of the judgment. The critical statement, request or objection must be followed to ensure that it is reflected correctly in the record; if a deficiency is noticed, its correction should be requested. [2]
Kayhan's review of written defense emphasises that a petition contributes to understanding the file and to later review. Drawing on this view, written and oral expression can be built on the same sequence of headings: main issue, supporting document, legal assessment and request. Oral expression brings out what the present session requires; the written text gives access to detail. [13]
A short record of the one objection that could affect the decision may be more valuable than every detail of an hour-long speech. Even so, a short record does not justify the defense not being heard or its important points being lost. Work after the hearing continues with checking the requests, the decisions, the tasks still to be completed and the deadlines.
For related details, see our article on the questioning of witnesses and experts.
Conclusion
Persuasion at a criminal hearing is strengthened by making the evidence understandable and by opening the legal issue for discussion at the right moment. A clear main thesis, an honest evaluation of counter-evidence, well-prepared questions and a precise request are the basic tools of this work. Rhetoric, narrative and communication knowledge can improve the use of these tools.
An effective defense counsel knows not only when to speak but also for what purpose. When needed, they explain calmly; when needed, they raise a firm objection; in both cases they remain bound to the facts, the law and the client's rights. The effect of a defense is seen not only in the impression it leaves in the courtroom, but in how clearly it puts the question the court must answer.
Frequently Asked Questions
What is the most effective method of persuasion at a criminal hearing?
There is no method that produces the same result in every file. Choosing the decisive dispute, showing its basis in the file, meeting strong adverse evidence and making a concrete request must be considered together. An expected effect cannot be understood as a guarantee of acquittal or of any other result.
Is it necessary to memorise the defense?
The main thesis and the order of the requests should be well known; memorising the entire text is not required. A short plan that makes access to documents easy can preserve flexibility in the face of new questions and explanations. The written text is prepared separately as the reliable record of the detail.
Does speaking harshly influence the judge more?
Loudness of voice is not in itself a measure of persuasion. A well-grounded objection raised firmly is different from a personal attack. The appropriate attitude is determined by the right to be protected, the concrete procedure and the circumstances of the hearing.
Can a defendant also ask a witness questions directly, like a lawyer?
The distinction in CMK Art. 201 must be preserved. The defense counsel may put questions directly; the defendant and the intervening party put their questions through the presiding judge or the judge. In a dispute over how a question is put, the procedure set out in the law applies.
Does submitting a petition make oral defense unnecessary?
A written explanation does not fully replace the function of asking questions at the hearing and taking part in the discussion. The two tools complement each other. New information that emerges in a given session should, where necessary, be addressed at that moment.
Does the Hybrid Rupture Defense mean leaving the hearing?
No. Kayhan's model discusses different levels of intervention. Leaving the hearing, recusal of the judge and other procedural steps are subject to their own legal conditions; they are not automatic steps to be used in order to appear effective.
Are the defense on the merits and the defendant's last word the same?
No. The defense on the merits contains the material and legal assessment of the file. The last word given to the defendant present before judgment is a separate personal right, distinct from the defense counsel's speech.
Sources and legal bases
[1] Constitution of the Republic of Türkiye, Arts. 36 and 38; European Convention on Human Rights, Art. 6. https://www.anayasa.gov.tr/tr/mevzuat/anayasa/ — https://www.echr.coe.int/documents/d/echr/convention_tur
[2] Law No. 5271 on Criminal Procedure (5271 sayılı Ceza Muhakemesi Kanunu), in particular Arts. 24–31, 67, 147–154, 192, 201, 215–217, 221–223, 225–226 and 230. https://mevzuat.adalet.gov.tr/mevzuat/102946
[3] İsmail Gürses, "Ways to Prepare a Good Defense in Advocacy" (Avukatlıkta İyi Bir Savunma Hazırlamanın Yolları), December 5, 2024, updated December 7, 2024. https://www.gurses.av.tr/avukatlikta-iyi-bir-savunma-hazirlamanin-yollari/
[4] Aristotle, Rhetoric, Book I, chapter 2, translated by W. Rhys Roberts, Internet Classics Archive, MIT. https://classics.mit.edu/Aristotle/rhetoric.1.i.html
[5] Abdullah Teltik Law Office, "From Cicero to Vergès: Narrative, Evidence and Strategic Perception Management in Criminal Defense" (Cicero’dan Vergès’e: Ceza Savunmasında Anlatı, Delil ve Stratejik Algı Yönetimi), March 11, 2026. https://www.abdullahteltik.av.tr/haberdetay/cicero-dan-verges-e-ceza-savunmasinda-anlati-delil-ve-stratejik-algi-yonetimi.html
[6] Fahrettin Kayhan, "Five Degrees of the Hybrid Rupture Defense in Criminal Procedure" (Ceza Muhakemesinde Hibrit Kopuş Savunmasının Beş Derecesi), March 30, 2026. https://www.hukukihaber.net/ceza-muhakemesinde-hibrit-kopus-savunmasinin-bes-derecesi
[7] Fahrettin Kayhan, "CMK 215 from the Perspective of the Hybrid Rupture Defense: The Defense's Right to Micro-Intervention" (Hibrit Kopuş Savunması Perspektifinden CMK 215: Savunmanın Mikro Müdahale Hakkı), March 19, 2026. https://www.hukukihaber.net/hibrit-kopus-savunmasi-perspektifinden-cmk-215-savunmanin-mikro-mudahale-hakki
[8] Law No. 1136 on Attorneyship, Art. 34; Union of Turkish Bar Associations (Türkiye Barolar Birliği), Professional Rules. https://www.barobirlik.org.tr/Avukatlik-Kanunu — https://www.barobirlik.org.tr/Meslek-Kurallari
[9] Constitutional Court, General Assembly, Sencer Başat and Others, Application No. 2013/7800, June 18, 2014. https://kararlarbilgibankasi.anayasa.gov.tr/BB/2013/7800 — https://www.lexpera.com.tr/ictihat/anayasa-mahkemesi/genel-kurul-k-2013-7800-t-18-6-2014
[10] Fahrettin Kayhan, "Games Played in the Criminal Courtroom: Defense Rhetoric from the Perspective of the Grand Theory of Trial" (Ceza Duruşma Salonunda Oynanan Oyunlar: Duruşmanın Büyük Teorisi Perspektifinden Savunma Retoriği), March 13, 2026. https://www.hukukihaber.net/ceza-durusma-salonunda-oynanan-oyunlar-durusmanin-buyuk-teorisi-perspektifinden-savunma-retorigi
[11] ECtHR, Nikula v. Finland, Application No. 31611/96, March 21, 2002, §§49–56. https://hudoc.echr.coe.int/eng?i=001-60333
[12] Baran Doğan, "Final Defense on the Merits in Criminal Law" (Ceza Hukukunda Esas Hakkında Savunma), June 13, 2024. https://barandogan.av.tr/esas-hakkinda-son-savunma-ve-beyan
[13] Fahrettin Kayhan, "Written Defense in the Hybrid Rupture Defense" (Hibrit Kopuş Savunmasında Yazılı Savunma), March 31, 2026. https://www.hukukihaber.net/hibrit-kopus-savunmasinda-yazili-savunma
[14] Chris Guthrie, Jeffrey J. Rachlinski and Andrew J. Wistrich, "Blinking on the Bench: How Judges Decide Cases", Cornell Law Review, 2007, 93, pp. 1 ff. Bibliographic record and research summary: https://scholarship.law.cornell.edu/facpub/917/ — https://scholarship.law.vanderbilt.edu/faculty-publications/823/
[15] Fahrettin Kayhan, "Learning to Be a Lawyer by Rehearsing: Creative Drama in Legal Education and Practice" (Hukukçu Olmayı Prova Etmek: Hukuk Eğitimi ve Uygulamasında Yaratıcı Drama), Hukuk Ansiklopedisi, May 27, 2026. https://hukukansiklopedisi.com/hukukcu-olmayi-prova-etmek/