Criminal defence at trial in Germany

By Dr. Julius Hagen, German Trial Lawyer

Testing the prosecution case at trial

Once a German court opens the main proceedings, it decides the charge on the basis of the trial. Counsel and the client must first settle whether the defendant will respond to the allegation. During the hearing, the account in the file is tested against the evidence actually presented. If the factual or legal position changes, counsel must act while there is still time to investigate the new issue or make the necessary application.

The indictment defines the scope of the trial

The indictment admitted by the court defines the historical event on which it may rule. At the start of the trial, the prosecutor reads its operative part and presents the prosecution's version of that event. Proof of a payment does not by itself establish its purpose. A recorded contact is equally inconclusive without evidence of the defendant's involvement. Those inferences have to be supported at the hearing.

Defence counsel monitors whether the case that emerges at the hearing still corresponds to the charge admitted for trial. Objections to the validity or proper definition of the indictment usually arise earlier, during the German intermediate proceedings. They are relevant here only insofar as they define the permissible scope of the trial.

The decision to speak or remain silent must fit the evidence

A defendant in Germany may remain silent, and complete silence cannot be used as evidence of guilt. Counsel reviews the file before advising on a statement. An early account may clear up a misunderstanding, yet it also fixes a version against which later testimony will be compared. In some cases it is sensible to hear a prosecution witness first. Elsewhere, a written statement at the outset gives the defence better control over what is placed before the court.

Questions about personal circumstances can also touch the merits. In a case alleging breach of a professional duty, the defendant's position within the company may be part of the prosecution case. Income usually matters at sentencing. Before the first hearing, counsel identifies the information that can safely be provided. A defendant who otherwise remains silent should not be drawn into discussing the allegation through questions presented as personal background.

The evidentiary hearing tests perception, memory and attribution

The evidentiary hearing begins after the decision on the defendant's statement. The court has its own duty to clarify the facts material to the judgement. Defence counsel need not pursue every inconsistency in a prosecution witness's account. A further question may expose a weakness, or it may invite new incriminating detail. Questions are most useful where the source of the witness's knowledge is unclear or the first record of the account is incomplete. Police witnesses often combine personal observations with information taken from the file. The distinction matters.

Digital evidence is usually checked first for completeness and reliable attribution. A single chat extract may look quite different when read in context. With expert evidence, the underlying factual assumptions deserve attention before the opinion itself. If a specific item of evidence is needed to prove a concrete fact, counsel may file a formal Beweisantrag. The court must then rule by reference to the statutory grounds for refusal. A focused question may first show whether further evidence is needed. Section 257 of the German Code of Criminal Procedure allows the defence to comment on evidence immediately after it has been taken. Any concrete fact that remains to be proved requires the appropriate application to be made separately.

Procedural rights may depend on acting at the right time

Procedural rights do not operate automatically. An objection to the use of unlawfully obtained evidence may have to be made during the hearing. If counsel considers a direction by the presiding judge unlawful, a ruling by the full court may be required under section 238(2) of the German Code of Criminal Procedure. Waiting until judgment often leaves the point unavailable on appeal.

The official record will not later replace counsel's own account of the hearing. Before a single judge or a Local Court panel with lay judges, the essential results of examinations are generally recorded. First-instance trials in a Regional Court or Higher Regional Court have no complete evidentiary transcript. Important applications are therefore commonly submitted in writing, followed by close attention to the court's ruling. Where the exact wording of a statement matters, section 273(3) permits an application for it to be recorded in full and read back in court.

New facts or a new legal assessment can change the defence

No trial can be planned in every detail. An expert may rely on an assumption that did not appear in the file, or a witness may introduce an additional event for the first time. If the court then considers a legal assessment carrying more serious consequences, section 265 requires formal notice. Counsel must have a real opportunity to discuss the change with the defendant and prepare a response.

A short adjournment may be inadequate. Where a disputed new fact permits the application of a more serious criminal provision, section 265(3) may require the trial to be suspended. Subsection (4) covers other changes that call for further preparation. The application must identify the work that remains to be done and explain why the hearing cannot fairly continue at once.

Closing argument and the defendant's final word

The closing argument starts with the evidence heard at trial. Counsel relates the facts established by the court to the legal elements of the charge and identifies what remains unproven. In a white-collar case, the decisive point may be whether the defendant personally knew of a particular transaction. The submission on the verdict follows from that analysis, with sentencing addressed where necessary.

The defendant then has the final word. A contested case calls for a different statement from one in which the defendant has confessed. An improvised addition can blur an otherwise clear position. Counsel therefore discusses the scope of the final word before closing submissions begin.