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Poor defense is a factor that, while rarely the sole cause, can often be a contributing factor to wrongful convictions.


According to surveys by the National Registry of Exonerations, poor defense was a (contributing) factor in 27 percent of the wrongful convictions registered there in U.S. criminal proceedings. Bad defense is assumed if the defense performance was obviously and grossly inadequate (here).

In Germany, there has so far been little scholarly discussion of this issue (see König, Schlechte Verteidigung als Ursache von Fehlurteilen, in Barton (ed.): Strafverteidigung 2020, pp. 71 ff.).


Poor defense can only be considered as a reason for a retrial in favor of the convicted person if the European Court of Human Rights has previously found a violation of the right to defense pursuant to Article 6 (3) (c) ECHR and the judgment is based on this violation (§ 359 no. 6 Code of Criminal Procedure), or if such a decision by the ECHR at least appears attainable. This will rarely be the case - if only in view of the admissibility requirements of Art. 35 ECHR.

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