Abstract

LAISE, Luciano D.. Sometimes I Have, Sometimes I Don't: 'Case Theory' vis-à-vis Judicial Activism and Criminal Defense. Díkaion [online]. 2022, vol.31, n.2, e3125.  Epub Aug 23, 2022. ISSN 0120-8942.  https://doi.org/10.5294/dika.2022.31.2.5.

This article reviews the main contributions to criminal litigation. Unlike most works on the topic, I claim that defense does not necessarily rely on a 'case theory.' Passive defense consists of nothing but dismantling the prosecution's case theory. However, if we stress that every single part must be dependent on a case theory, we might be nudging judicial activism. It would not only entail a violation of the segregation of functions needed for an accusatory procedural system but also weaken the professional sense of duty among lawyers. To overcome those difficulties, I first reconstruct the concept of 'case theory' and 'judicial activism.' Then, I propose adopting the concept of strategy instead of case theory. The very notion of strategy highlights the planning feature and the relevance of robust interaction between lawyers and the environment where they follow their practices.

Keywords : Strategy; criminal litigation; passive defense; segregation of functions; accusatory criminal procedure.

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