Defence strategies at trial

By Dr. Julius Hagen, Attorney at Law

The objective comes before the method

An acquittal is not the only rational objective in every case. Where the evidence is strong, a suspended sentence or the protection of a professional licence may become the client's priority. If the charge depends on uncertain attribution, early concessions could needlessly abandon the dispute over guilt.

The prosecution file permits only an initial forecast. The trial reveals how a witness actually gives evidence, which assumptions support an expert opinion and whether a document can be admitted in the expected form. Counsel should prepare for more than one possible development.

A statement affects the remaining room for manoeuvre

A defendant may remain silent without adverse inference. A statement can put an alternative account before the court. Its timing and form depend on the evidence. A prepared statement keeps the wording controlled; answering questions may be appropriate where the defence turns on the defendant's own recollection.

Once made, the account remains part of the proceedings. Differences from previous statements may later be used against the defendant. Waiting until some witnesses have been heard can allow the response to focus on the issues that genuinely remain disputed.

Confrontation requires a procedural purpose

An adversarial step is justified where it concerns a matter capable of affecting the judgment. This may involve a statement obtained without a proper caution or the uncertain attribution of digital communications. Refusal to hear material defence evidence may also call for a formal response.

Different tools serve different purposes. A ruling by the presiding judge may be referred to the full court under section 238(2) of the German Code of Criminal Procedure. A formal evidence motion under section 244 connects a specific fact with an identified means of proof. Certain admissibility objections must be made in time. These measures protect defined procedural positions; disputes over peripheral matters do not assist the client.

Evidence at trial may require a change of course

A witness who previously claimed a confident identification may reveal gaps in memory. With digital material, the account holder and the actual author may be different people. Expert evidence may weaken when its underlying facts prove uncertain.

A reserved defence may then move towards active evidential intervention. The reverse is also possible. If the prosecution case becomes materially stronger, a limited statement or a discussion of sentencing consequences may achieve more than maintaining a position that can no longer be supported. Adjustment to the evidence is part of conducting the trial.

Defending the sentencing outcome

A sentencing-focused defence may be appropriate where contesting the charge offers no realistic improvement. An admission may receive mitigating weight. Compensation or properly evidenced personal circumstances can also affect sentence. The expected benefit should be specific before the defendant changes position.

A formal agreement under section 257c may define a range of sentence. The finding of guilt cannot be negotiated, and the court retains its duty to establish the facts. Our page on plea agreements in German criminal proceedings explains the statutory framework. There are also positions between a full contest and a complete admission, including agreement on selected facts, a statement confined to personal circumstances or a dispute limited to particular counts.

The client's interest remains decisive

Confrontation and cooperation are not closed models. Counsel may question a witness closely, object to the use of evidence and still discuss an appropriate sentence. Selected facts may be accepted while personal attribution or the legal characterisation remains contested.

Conflict should not become a performance by counsel or expose the client to risk without procedural benefit. Cooperation is justified by an identifiable advantage. Every measure is assessed against the objective agreed with the client.