Testimony Against Testimony in Sexual-Offence Cases

By Dr. Julius Hagen, Attorney-at-Law

What “testimony against testimony” means under German criminal procedure

A testimony-against-testimony constellation exists where, apart from the incriminating statement, there is no other direct offence-specific evidence independently proving the allegation. This is not limited to express denial cases; it also applies where the suspect exercises the right to remain silent.

The situation is particularly sensitive because the court may not simply prefer one side by instinct. It must conduct an especially careful assessment of all relevant circumstances.

Why this constellation is so common in sexual-offence cases

Many sexual-offence allegations concern situations that take place in private or otherwise shielded settings. Neutral witnesses are often absent, and objective traces frequently do not reveal the actual context of communication, consent, or opposing will.

Even where there are injuries, medical findings, or other traces, such material will often not answer the central question of how the encounter unfolded, whether an opposing will was recognisable, and how the situation was perceived by the parties involved. That is why, in many cases, the legal assessment turns primarily on careful analysis of the incriminating statement and its place within the overall evidentiary picture.

What courts are expected to examine particularly carefully

German case law requires a heightened overall evaluation in these cases. The focus is on the origin and development of the incriminating statement, its internal coherence, deviations across different interviews, the plausibility of the account, and any identifiable motive to accuse. Individual items of evidence must not be assessed in isolation; what matters is how they work together in the overall picture.

Why consistency must not be misunderstood as rigid repetition

Not every discrepancy discredits a statement. The case law expressly recognises that complete verbal consistency over time is not realistic. The real question is whether differences can be explained psychologically and by memory processes, or whether there are significant and difficult-to-explain shifts in the core of the allegation itself. For the defence, that distinction is often critical.

Why the history of the allegation can matter as much as its content

In sexual-offence cases, it is often not only the content of the statement that matters, but also how the allegation emerged: when was it first made, to whom, and in what context? Were there relationship conflicts, family disputes, separation issues, loyalty pressures, or possible suggestive influences?

The German case law stresses that in sexual cases the origin and development of the incriminating statement must be examined with particular care.

Which additional forms of evidence may become important in practice

Even where the core events cannot be directly reconstructed through objective proof, surrounding evidence can carry substantial weight. In practice, this may include chat histories, messaging data, call logs, photographs, calendar entries, location data, medical records, and witnesses relating to events before or after the alleged incident.

The parties’ conduct before and after the allegation may also be highly relevant to the court’s assessment of the evidence. This can include later contact, apologies, breaks in contact, prior conflicts, or conversations with third parties. Such material does not replace credibility analysis, but it can be decisive in showing whether an incriminating account fits coherently into the wider evidentiary record or whether serious doubt emerges.

When a psychological credibility assessment may become relevant

In testimony-against-testimony constellations, one important question is whether a psychological credibility assessment should be obtained. Such an expert opinion is neither automatic nor a substitute for the court’s own evaluation of the evidence. In suitable cases, it may assist in analysing the origin, development, and internal structure of an incriminating statement. The decisive issue, however, remains whether the statement can be properly assessed in light of the full case file, the interview circumstances, and the wider evidentiary record.

From a defence perspective, the key issue is not only whether expert input may be useful, but also with what precise scope, on which factual basis, and at what procedural stage it is introduced. It is equally important to examine whether there are methodological weaknesses, unclear factual assumptions, or an insufficient distinction between expert analysis and the court’s own formation of conviction.

Our approach in testimony-against-testimony cases

Defence in this constellation does not mean attacking every accusation in a blanket way. What matters is a structured review of the actual file: what statement exists, in which version, and from what point in time? How has it changed across the proceedings? Which objective surrounding facts support or weaken it? Which explanation fits the communication history, the timeline, and the case file?

This often includes close analysis of interview records, statement development, possible suggestion effects, surrounding evidence, and the strategic question whether expert input may be useful.