Plea Bargaining in Germany:
Explained by a criminal Defence Attorney

The right of the accused to defence has existed ever since there was a formal procedure for deciding on the existence of criminal offences and for determining the corresponding punishments. To preserve this right, defence pleas existed even in ancient times. Either the defendant made the plea for themself, or they commissioned someone to do so. Over time, the profession of lawyer became established, so the defence lawyer’s plea fell within the scope of their duties.

In its current form, the German Code of Criminal Procedure first provided for the defence lawyer’s plea in 1877. This long and international tradition is the first indication of the importance of the plea.

Due to its final position within the criminal proceedings, the summation has a special weight: Since after the closing statements, only the defendant’s word is spoken before the verdict is read out, the arguments presented in each case are still very present when the verdict is reached and can thus be decisive for the judgment.

The defence plea can (co-)decide the outcome of the criminal proceedings. Admittedly, the court is not bound by the proposals of the pleadings – neither those of the defending nor those of the prosecuting. However, the proposals of the public prosecutor and the defence lawyer form essential points of reference for the sentencing range, which the judge can use as a guideline.

To positively influence the sentence, the plea must be convincing. However, persuasiveness is not based on the quality of legal expertise alone. Skilful rhetoric and clear structuring also play a crucial role here.

There are parallels to the lectures familiar from US series and films. Although German courts do not have juries, so the emotional level is less important but not irrelevant. A plea is a balancing act between facts, legal assessment and consideration of the defendant’s situation, which means that the emotional level is also considered in the defence plea.

Finally, the defence lawyer can also point out any procedural errors in their plea that violate the rights of the accused.

Because the defence lawyer’s plea takes place after the accusatory plea, it also represents an immediate reaction to the prosecutor’s presentations, in which counterarguments can be made regarding the prosecution’s claims.

Since the result of the criminal proceedings, the sentence, is ultimately what matters to the accused, the request regarding the penalty is the focus of the defence lawyer’s plea.

In principle, only a punishment covered by the legally provided range of punishment for the respective offence can be requested. Therefore, the requested penalty represents the end of the plea and thus the résumé of the evaluation of evidence and legal assessment.

The defence lawyer pleads for certain circumstances to be considered when determining the sentence. These can be, among others:

• previous impunity,
• confession/remorse,
• reduced culpability,
• comparable cases.

To provide our clients with the support they need, the German law firm of Schlun & Elseven offers competent and committed legal assistance. Our lawyers have excellent expertise in German criminal law and extensive experience in dealing with criminal prosecution authorities. We support you in all cases that have a clear connection to your person or your assets, as well as in those offences involving technology, means of transport, drugs or fraud. If a preliminary investigation is already pending against you and you are threatened with pre-trial detention, or you fear a search of your private and business premises, please do not hesitate to contact us. We will stand up for you so that your rights are always protected.