Preparing for a Criminal Trial in Germany

When preparing for a criminal trial in Germany, it is essential to be aware of the steps involved with the process. How the trial will play out will vary based on the case’s facts and other factors; however, those facing this scenario need to know the different stages involved.

Firstly, the prosecution will begin by investigating the crime. This step involves gathering physical evidence from the crime scene, interviewing witnesses, documenting their statements, and determining charges. If there is enough evidence to proceed, they will issue an arrest warrant, conduct interrogations and prepare for the trial. Although the prosecution has considerable powers, the accused should be aware of their rights regarding house and business premises searches.

Once the case is brought to court, the different parties can file pre-trial motions. Such motions can include those to suppress evidence, a motion for a change of venue, a motion for discovery, a motion for a continuance and a plea bargain. A plea bargain involves the defendant negotiating a means to avoid a trial or receive a reduced sentence.

The defence attorneys will prepare the case in the background during this time. Such a process involves examining the evidence, interviewing witnesses, consulting with experts and assessing defence strategies suitable to the case.

Once the trial begins, the prosecution will present its case to the court, and the defence will answer the charges. A judge will oversee the case; in some situations, a jury will be present to find a final verdict. The result is the sentencing, whereby the court will impose the sentence if the defendant is found guilty.

If it is a court of first instance, the parties can consider appealing the decision if they are unsatisfied with the case’s conclusion.

Criminal court cases in Germany are often long and complex, so consulting with expert defence services is strongly advised.

Working with a criminal defence lawyer is not always necessary, as individuals can represent themselves in German criminal cases. However, it is strongly recommended to consult with legal experts. Defendants have a right to legal representation and should not be afraid to use it.

Our criminal defence team have an outstanding knowledge of German criminal law, extensive experience in court proceedings and negotiations, and a deep understanding of jurisprudence. Our lawyers will outline the charges and the possible consequences of conviction, review the evidence and carefully analyse the prosecution’s case and prepare a defence strategy.

Lawyers cannot conduct a case in a manner that is harmful to their clients. However, our team will provide you with a realistic assessment regarding your options in such cases.

Lawyers prepare clients for the case. Many clients have never been in a court in Germany before, so they may require advice regarding presenting themselves in this situation. Our team can guide you through this process. They will also advise clients regarding plea bargains and pre-trial motions that may be of worth to their case.

The next step is to prepare expert witnesses for the client and to examine the witness statements. Consulting with experts allows the lawyer and the client to understand better the technical evidence that may be presented. Similarly, our lawyers will review the evidence and determine whether any inconsistencies relate to witness statements and the evidence presented.

During the case, the prosecution will present their evidence, and the defence lawyers will challenge what is shown. By utilising cross-examination of witnesses, and evidence gathered from experts, the aim will be to highlight weaknesses and inconsistencies within the prosecution’s case. Should the defence present enough reasons to doubt the prosecution’s case, they can prevent or reduce the sought-after sanctions.

Before, during and after the trial, our lawyers will ensure that the defendant is aware of their rights under German law and will uphold them throughout. Defendants have a right to a fair trial, the right not to self-incriminate, the right to know about the criminal justice system, the right to appeal, the right to non-discrimination and the right to legal counsel. Working with a criminal defence lawyer is the best way to ensure those rights are protected throughout the process.

The defence can consider appealing the decision if the trial does not go to plan. Our team will outline the grounds for an appeal and how strongly it should be considered.

The prosecution’s role is to present their case against the accused. They aim to prove their guilt beyond reasonable doubt and convince the judge of their case. They achieve this goal by investigating the crime, gathering evidence, and presenting it to the court.

When gathering evidence, the prosecution will gather evidence from the police and other law enforcement agencies and will review it. Physical evidence in such matters can refer to DNA samples, fingerprints, weapons and other forensic evidence to link the accused to the case. Other forms of evidence include witness statements, documentary and audio-visual evidence, expert testimony and circumstantial evidence.

Once they have gathered their evidence, the prosecution will analyse what they have and determine how effective it is in determining guilt. With such evidence, they can build their case against the accused. If there is insufficient evidence, they should discontinue the case.

The judge, who oversees the case, decides on the admissibility of evidence in the court proceedings. There are strict rules on evidence that need to be followed by the prosecution in this matter.

The prosecution will lead the case against the accused and, therefore, has the right to question them, witnesses and experts that have been called to testify. If they disagree with the final decision or believe the sentencing has been too lenient, they have the right to appeal the decision.

Pre-trial motions are legal requests made before the trial begins, and either side can make them. These motions can be critical in determining how the trial will proceed. They allow the different parties to make requests and answer issues before the trial commences.

Pre-trial motions are intended to ensure a fair trial following German criminal procedure. Examples of such motions that can be considered include:

• Motion to suppress evidence: Evidence can not be submitted in court if it is demonstrated that the prosecution obtained it illegally or through an unconstitutional search and seizure.
• Motion for a change of venue: If either side believes that the location of the court may lead to an unfair trial due to bias or prejudice within the community, they can submit a change of venue motion.
• Motion for a bill of particulars: Such a motion involves the defence claiming that the prosecution’s charges are too vague. They will need more information regarding the specific charges to prepare their case in such a suit.

The court determines whether such pre-trial motions are granted or denied. The parties can appeal this decision if they are unsatisfied with the outcome.

Pre-trial motions are beneficial as they can save time in resolving disputes over evidence admissibility, ensure that the case is focused on particular issues, prepare the parties for the trial, and often improve the likelihood of success in the case. Pre-trial motions are essential to protecting the defendant’s rights and should be strongly considered when possible.

Plea Bargaining

Plea bargaining is another common practice that can be utilised before a case is brought to court. This process allows the defence attorney and the prosecutor to work together to reach a conclusion, such as a defendant pleading guilty to a lesser charge to receive a reduced sentence. Plea bargains can also allow the defendant to cooperate with the prosecution.

Plea bargaining is generally used in cases with strong evidence against the defendant, and their chances of acquittal are minimal. Such plea bargains can efficiently resolve disputes, but the principles of justice and fairness are central to them.

Courts decide whether to accept the plea bargain and assess whether they follow the principles of justice and fairness. They can reject the plea bargain in cases where the sentence is too lenient.

Presenting evidence is critical to deciding the case. There are strict rules regarding what evidence is allowed in such cases and how they are gathered. If the prosecution gathers evidence illegally, such as by illegally acquiring physical evidence during a house search, they can be deemed ineligible for the case. During the pre-trial motions, the defence can question the use of specific items of evidence.

In German criminal trials, various forms of evidence are shown, including physical evidence, witness testimony, documentary evidence, expert testimony, confessions, and audio-visual and circumstantial evidence. The judge will determine whether particular forms of evidence are permissible in the case. They will base their decision on the potential for prejudice and the law relating to evidence.

Experts in German Criminal Cases

Expert witnesses have a crucial role in outlining technical information that may be necessary for the case. Such specialised knowledge may be beyond the average person’s understanding and can, therefore, ensure that essential information is not lost in the case due to the speciality involved.

Either party can utilise experts to help build their case. The court also has the right to appoint experts. These experts must possess qualifications and experience in their relevant field and should not have a conflict of interest relating to their testimony. They are not advocates for either side and should be objective based on the evidence.

The requirements for expert witnesses in German criminal defence cases are outlined under Chapter 7 of the German Code of Criminal Procedure, as it regulates the selection and examination of experts.

Experts in criminal cases need to provide a written opinion and should be available for cross-examination by the parties involved. Their report will be crucial in the court’s decision. However, the court can reject an expert’s opinion if other evidence is available or their credibility has been damaged.

Witnesses in German Criminal Cases

The rules about witnesses in German criminal cases are provided under Chapter 6 German Code of Criminal Procedure, which outlines their rights and how they can be selected and examined. Witnesses in German criminal trials can be called by the prosecution, the defence, or the court to provide evidence in their cases.

Witnesses are called to provide evidence relevant to the case and are expected to answer questions truthfully and accurately. They will face cross-examination by the lawyers to test their credibility and to determine whether the court can rely on their testimony. The prosecution’s witnesses will be used to identify the accused and help clarify what happened at the crime scene.

The parties can challenge the credibility of witnesses as well. The other side will seek to determine whether they are impartial and if they can be believed. The court needs to ensure that they are not biased against the other party and that their testimony is relevant to the matter. Their statements will be assessed to ensure that they are consistent and that no doubts or significant questions are raised regarding what they have provided.

One of the crucial roles of the defence attorney is to cross-examine such witnesses to determine whether the court can believe them.

Technology in German Criminal Cases

Technology use is becoming essential in court proceedings, especially in presenting evidence.

Courtrooms are more open to video conferencing when taking witness testimony, making it easier to present witnesses located elsewhere or those unable to travel.

Technology also plays a role is with digital evidence. Courts may examine emails, social media posts and other electronic documents as part of the case. Such digital evidence can be submitted to the courts alongside more traditional evidence as long as it is authentic and reliable. Those involved in the case can analyse that evidence and question it.

Although German courts are open to technology use in assessing cases, this is still a developing area. Defence lawyers will strongly question the use of such technology if there are doubts about whether they violate the defendant’s rights.

The exact defence strategy chosen in a case will vary based on the circumstances of the case. However, when facing a criminal trial in Germany, defendants can expect versions of some of the following strategies.

Challenging the prosecution’s evidence: The defence will highlight any inconsistencies within the prosecution’s case, and such a step can include coss-examining witnesses, challenging evidence presented, demonstrating expert witness reports to refute the evidence etc.

Presenting an alibi: The defence will aim to prove that the defendant was not present at the crime scene at the time of the offence. They will gather witness statements and other evidence to demonstrate this to be the case.

Mistake: The defence may demonstrate that the defendant made an honest and reasonable mistake about a fact that is material to the crime charged.

Self-defence or duress: The defence may be able to show that the defendant’s actions were justified because of the circumstances involved, e.g., they were acting in self-defence, or there was another reason for their behaviour.

Defence lawyers may also seek alternative methods to resolve the matter by examining other forms of justice. Defendants may be able to use a “diversion program”, which allows them to give community service or receive counselling or drug treatment. In Germany, justice focuses primarily on rehabilitation and reintegration, so courts are often open to alternative methods, particularly for non-violent crimes and first-time offenders.

The prosecution and the courts will assess whether such solutions are acceptable based on the nature of the offence and the defendant’s record.

There are several potential consequences of a criminal conviction in Germany, including fines, prison sentences, community service and probation. The judge needs to refer to German Sentencing Guidelines when deciding the consequence. The nature of the crime, the facts of the case, the defendant’s criminal history and many other factors play an essential role in reaching a decision.

Defendants have the right to appeal to a higher court when facing a conviction. Criminal appeals in Germany are a complex matter and should only be considered after first receiving professional legal advice. Appeals involve the higher court reviewing the case to decide whether the original conviction and sentence were the right course of action. Appeals can eventually overturn the conviction and acquit the defendant. They can also lead to a new trial.

There are strict time limits for filing an appeal, and they are usually available one month from the day of the conviction.

If the defendant believes their fundamental rights were violated during the trial, they can, in some cases, bring the matter to the German Federal Constitutional Court. They can quash the conviction and bring a new trial if this violation of rights is found in the case.

Post-trial motions are also allowed; they can seek a re-trial or an action to reduce the sentence. Such post-trial motions generally come about if new evidence is discovered that was not present during the original trial.

Facing a criminal case for those under the age of 18 (minors) can be more daunting than that for an adult. Minors have the many of the same rights as adult defendants in such cases, namely, the right to a fair trial and legal representation and the courts should ensure that their rights are protected throughout the process.

Cases involving minors are heard in specialised juvenile courts, and the focus is primarily on rehabilitation. With this in mind, juvenile courts in Germany aim to rehabilitate and reintegrate the child into society rather than to punish them for their actions. Therefore, youths are more likely to be sentenced to youth detention or community service. Other options such as therapy and probation are also available, which contrasts with adults who are more likely to face prison sentences in criminal trials.

In Germany, the age of criminal responsibility, whereby the child can be held responsible for their actions, is 14 years old. Such children are often represented by a legal guardian or court-appointed guardian as opposed to a criminal defence lawyer of their own choosing.

Cases involving minors are heard in specialised juvenile courts with judges trained for such cases. An example of the difference between criminal and juvenile courts is that the maximum sentence that can be imposed by a juvenile court is shorter than that of a criminal court. Minors’ confessions are considered more carefully, and the juvenile courts aim to establish that the minor has understood the nature and consequences of their confession, and that it was given voluntarily.

Trials are also generally held in closed sessions where the media and public are not allowed to attend. Adult trials are usually open to the public.