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.

Typical sequence of a German criminal trial

01 – Calling the case

The presiding judge checks that the defendant, defence counsel and the evidence scheduled for the hearing are present.

02 – Personal details and indictment

After confirming the defendant’s personal details, the prosecutor reads the operative part of the indictment admitted for trial.

03 – Statement or silence

The defendant is informed of the right to remain silent and decides whether, and in what form, to respond to the allegation.

04 – Evidentiary hearing

The court hears the evidence material to its decision. The defence participates through questions, applications to take further evidence and any necessary objections.

05 – Closing submissions and final word

Once the evidentiary hearing has closed, the parties make their closing submissions. The defendant has the final word.

06 – Deliberation and pronouncement of judgment

The court deliberates and then pronounces the operative judgment together with the essential reasons.

Note: Applications, new evidence or directions from the court may require additional steps during the hearing.

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.

Checklist before and during the trial

Keep the summons, indictment, order admitting the indictment and all court correspondence together
Reserve every consultation and trial date and report scheduling conflicts immediately
Do not make an unplanned statement to the court, prosecution, police or a co-defendant
Preserve messages, emails, contracts, booking data and other potential evidence without alteration
Document any approach by a witness or co-defendant and do not discuss or coordinate proposed testimony
Forward new official letters, media enquiries or professional consequences to the defence promptly
Collect documents on personal and financial circumstances only in coordination with counsel

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.

Before the trial date

If a trial date is approaching or the evidentiary hearing is already under way, you can seek confidential advice on the procedural position. We will identify the decisions that need to be made before the next hearing and any rights that require action now.

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.