Which facts will the court accept as proven?

By Dr. Julius Hagen, Attorney at Law

The court's factual account is built from individual pieces of evidence

Under section 261 of the German Code of Criminal Procedure, the court decides according to its free conviction formed from the trial as a whole. In a homicide case, the scene, injury pattern, traces, communications and witness evidence are assembled into one account of events. The defence must separate established facts from conclusions that merely bridge a gap in the chain of proof.

This matters after a confrontation followed by a struggle, an attack with a knife or an incident in which the defendant reports gaps in memory. Depending on the sequence, distance, force and the victim's reaction, the same starting point may be classified as intentional killing, assault resulting in death or negligence. The defence account should take centre stage only after it has been tested against the objective findings.

What should be secured before making a statement

• Wait for access to the file and do not comment on the facts without an agreed defence approach.
• Keep summonses, seizure records, medical documents and official notices in full.
• Preserve messages, photographs and location data in their original form. Do not delete or edit anything afterwards.
• Do not discuss the accusation with potential witnesses or co-defendants, and record contact attempts.

A defence statement must withstand the evidential record

Under section 243(5) of the German Code of Criminal Procedure, the accused may comment before evidence is taken or remain silent. A statement does not automatically carry greater weight than other evidence. The court examines its internal coherence, its consistency with objective traces and its ability to explain contradictions. A late or changing account cannot be rejected solely because of its timing, but it may affect credibility in the overall assessment.

Accounts that deny intent to kill while leaving the sequence unexplained are especially vulnerable. If the accused admits a knife injury but does not explain how the confrontation developed, blood traces, injury depth and witness accounts may fill the gaps. Before speaking, the defence must identify what is reliably remembered and what should wait until the file has been reviewed.

Witnesses and digital traces require careful attribution

A police statement, chat message or location record does not by itself establish the full course of events. With witnesses, perception, earlier accounts, later additions and personal interests must be kept apart. Section 252 may restrict the use of an earlier statement by a witness with a statutory right to refuse testimony. At trial, the relevant point is what that person personally saw or heard.

For mobile-phone evidence, provenance, completeness and timing matter. A message may show a conflict without establishing who acted or what an expression meant in context. The same applies to photographs, deleted messages and movement data. The defence should identify the point at which a data fragment is being turned into personal attribution or an inference of intent.

Applications to take evidence must target a provable fact

An application to take evidence under section 244 must identify a specific fact and a specific means of proof. Asking a witness generally about credibility or legal assessment is insufficient. The application should state the witness's own perception of a defined event. This can make the line of sight at the scene, the precise start of the struggle or the timing of an emergency call a concrete subject of the trial.

Before filing, its function should be clear. It may support an alternative account, challenge a key circumstantial fact or prevent a gap in the judgment. Repeating evidence already heard adds little. Precisely defined facts keep the overall assessment tied to matters that can be tested.

The form of the account determines its vulnerabilities

A lawyer's written statement can convey an account if the accused adopts it. For the court's assessment, it still matters what was actually stated and confirmed in the trial. Legal precision in the wording cannot compensate for an account that does not explain the sequence.

A defence statement is useful where it gives a coherent account that fits the objective findings. It does not replace the taking of evidence. The central decision is whether speaking now creates a credible alternative or gives the circumstantial case additional points of attack.