Avoiding a trial at the criminal court is an outstanding goal of criminal defense. Particularly in sexual criminal law, we also had many cases in 2023 in which preliminary proceedings were ultimately discontinued due to a lack of suspicion (Section 170 II StPO). This is more common than proceedings being discontinued after an indictment has been filed. However, even if an indictment has already been filed, it is not yet set in stone that the case will actually go to trial.

testimony versus testimony situations in sexual criminal law

In 2023 - even though this hurdle is high - we again had several cases in which it was possible to avoid court criminal proceedings with a trial despite indictments being filed. In particular, these were cases involving testimony against testimony situations in sexual criminal law, including allegations of abuse and rape.

Lawyer on the testimony-against-testimony constellation

Last year, the Regional Court of Wuppertal already emphasized in a decision in a testimony-against-testimony constellation that statements made by the witness to persons providing care or therapy in the context of a testimony-against-testimony situation must be verified. These statements to third parties - just like the statements in the police interview - cannot in themselves be the sole basis for conclusions.

The so-called "consistency test" must be emphasized, i.e. an assessment of all statements made by the allegedly injured witness, which would have to support a predominant probability of conviction. The consistency of such statements must be examined. Significant variations over time devalue the probative value.

However, the undertaking of "avoiding a court hearing after the indictment" should really be approached with caution. In the end, this is always decided by the court where the charges were brought, and that is also the court where the defendant stands if the court opens the main proceedings despite opposition. The assessment of the credibility of witnesses and the credibility of their statements is, according to an upheld principle, "the court's very own task" and the expertise required for this cannot be denied to the court in the first instance, unless there are very special circumstances.

Defense lawyers on sufficient suspicion in sexual criminal law

The opening of the main court proceedings requires sufficient suspicion. Sufficient suspicion within the meaning of Section 203 of the German Code of Criminal Procedure (StPO), which makes it possible to open main court proceedings, can only be affirmed if a conviction in a main trial is probable on the basis of a preliminary assessment of the offense based on the results of the investigation submitted by the public prosecutor's office.

In November 2023, the Münster Local Court came to the conclusion in one of our cases that the court could not assume with sufficient probability, based on the contents of the file, that sexual acts had taken place against the recognizable will of the prosecution witness. Here, too, it was a case of "testimony against testimony".

In a constellation in which there is "testimony against testimony" and there is no other incriminating evidence apart from the testimony of the only witness for the prosecution, the trial judge must be aware that the testimony of this witness must be examined for credibility.

trial judge in the "testimony against testimony" constellation

In the "testimony against testimony" constellation, the trial judge must regularly give weighty reasons outside of the witness's testimony that enable him to nevertheless believe the witness's testimony as long as there are no indications that the witness intentionally gave false testimony. However, even if there are no indications that the witness made a deliberately false statement, such a statement can be so contradictory and incomplete in key points that a conviction cannot be based on it.

For court proceedings not to be opened, it is also sufficient that there is no reasonable suspicion that any sexual acts took place against the recognizable will of the witness. One must never overlook this: The accused must have been able to recognize that the witness had a contrary will.

Throughout Germany, Rademacher & Horst as defence lawyers represent their clients in sexual criminal law.