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Parent Category: Courts

Created on Tuesday, 25 November 2008 04:48

Last Updated on Wednesday, 13 February 2013 15:59

The Main Trial

The main trial is the "show time" in court. It's when all get together for a meeting: judge, defense lawyer, defendant, representative of prosecuting authority. The procedure of this major event will be described below: if and when evidence will be taking, what you may or may not say if at all, what role your lawyer has, appealing a judgment, etc.

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When does the main trial start and will I be informed about that?

As soon as the investigative judge considers the case to be mature for a main hearing, he will issue a “Eröffnungsbeschluß (Decision for Trial)”. Such decision will be served to you either in jail or at home and you will be summoned to appear in court on a certain day (§216 StPO). You must be asked if you wish to file any special requests in support of your defense (§217 StPO). Your defense attorney will be simultaneously informed – be he privately or mandatorily mandated (§218 StPO).
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And what happens if my attorney does not show up in court at the day of the hearing?

Non-appearance of the defense attorney does not entitle you to request the postponement of the trial. Supposing you must be represented by an attorney then the court will have to appoint another one.
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Whenever I see these legal guys with black robes sitting above me, makes me go crazy. Must I really be present during the trial?

Well, it might be a good idea to acquire relaxation techniques because the main trial cannot take place without your appearance (§230 StPO). If you do not offer satisfactory excuse for your failure to appear, you can reckon that the police will pick you up and escort you to the hearing (§231 StPO). You are not permitted to absent yourself from the courtroom during trial. The presiding judge can take suitable measures to prevent your departure. You can be placed in detention during the intermissions of the court session.
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It had to happen as I just mentioned. I could not keep myself calm during trial and started yelling, swearing, and cussing at the judge. He then had me removed from the courtroom. Well, thinking of what you just told me, I guess I won’t be tried anymore. Right?

Supposedly wrong. If you cause your removal from the courtroom by misconduct, the trial can be continued in your absence if your presence is not considered essential to the finding of the truth, and if it is feared that your misconduct will cause grave disturbance of the court session (§231b 1 StPO). You must, however, be given opportunity to answer the allegations contained in your indictment.
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How and when will witnesses be examined?

Upon application, the judge will permit the public prosecutor and the defense attorney to question the witnesses and experts directly. The presiding judge usually questions all witnesses and experts to find out information he deems necessary for further clarification of the case. Defense witnesses will be questioned by the defense attorney first and the public prosecutor second, and vice versa (§239 StPO).
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I heard from my defense attorney that the victim will also be prosecuting me. Huh? I thought there is no such thing as a private prosecutor (Nebenkläger) in Germany because is the privileged of the state.

The German Code of Criminal Procedure provides that the victim of the offense or his survivors be permitted to participate in the trial as intervener, or private prosecutor. The intervener is usually represented by a counsel, and may bring out aspects relevant to the case as well as question witnesses. However, the private prosecutor will have just as much influence on the results of the trial as you have.
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Is the whole trial only subject to the ruling of the presiding judge? Can’t my counsel ask any questions to witnesses or experts?

The presiding judge must allow any the other judges and of lay judges (those sitting outward most next to the professional judges) assisting in the trial, at their request, to direct questions to the accused, the witnesses and the experts (§240 StPO). The presiding judge must also permit the public prosecutor, the accused and his defense attorney, and the lay judges (Schöffen) to direct questions to the witnesses and the experts. Direct cross-examination of the accused by a co-accused is not allowed (§242 StPO). If admissibility of a question is disputed, the decision rests with the court.
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What is course of the main trial?

The main trial opens with a statement of the offense with which the person (now called “Angeklagter”) is accused (§243 StPO). The presiding judge determines whether the accused and defense attorneys are present, whether the exhibits have been brought to the courtroom, and whether the witnesses and experts have appeared. After the opening formalities, the witnesses have to leave the courtroom. The presiding judge then asks the accused about his personal background and his general situation. The public prosecutor then reads the Bill of Indictment (“Anklageschrift”). The accused is then advised of his right to make statements regarding the allegations contained in the bill of indictment, or to remain silent. If the accused is willing to make statements, he must be given opportunity to refute the stated reasons for suspicion and to present facts favorable to his case. The judge may cite previous convictions at this point, if the court considers them relevant – which is usually done. Bear in mind, the presiding judge will see your complete record, i.e. with punishments already deleted for other offices. In traffic matters, he will also have contacted the “registry of sins" and read this list aloud.
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When will evidence be taken?

The hearing of the accused is followed by the taking of evidence. The court is bound by law to do all in its power to discover the truth by examining all possible evidence and exhibits connected with and essential to the evaluation of the case – show they innocence or guilt. A request for admittance of evidence must be denied if the evidence is inadmissible in nature. Evidence may also be denied admittance by the court if, for example, the request is obviously superfluous, if the fact to be proven by the request is unrelated to the case or has already been proven, or if the admittance of the evidence would be irrelevant or merely designed to prolong the trial. The request for the interrogation of an expert can be denied by the court if the court itself has expert knowledge of the matter in question. The obtaining of additional expert opinion can also be denied if the contrary of the allegation(s) to be proven by the requested expertise has already been established. If, however, the professional competency of an expert is debatable or if the expertise contains contradictory statements, another expert may be admitted, if he has superior means for evaluating the evidence in question. A request to view the scene of the crime may be denied if the court feels that it is unimportant to the finding of the truth. The denial of a request for admittance of evidence requires a court order upon your application.
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Comment:

"Hearsay evidence", for example statements made by other persons against you, can be entered into evidence in a German court. In other words, you do not have to actually be caught in the act of committing a crime to be convicted. However, that will be weighed accordingly.

To what extent will evidence be taken?

The taking of evidence must include all witnesses summoned and present and all exhibits introduced, unless their introduction is intended to prolong the course of the trial (§245 StPO). This also applies to the hearing of witnesses or the evaluation of exhibits introduced during the trial in process. The hearing of certain witnesses or the evaluation of exhibits may be waived if the public prosecutor and the accused agree to it.
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Sort of in the nick of time, a witness came forward and said that she will prove my innocence. However, the trial is tomorrow. Can she still be summoned or is all lost and it too late?

A request for introduction of evidence cannot be denied on the grounds that it was made too late (§246 StPO). As soon as the main hearing has been closed, it will usually be too late to present evidence. The only thing to do would be to fax the court (and public prosecutor) an application to reopen the trial to present your evidence. If the witness or expert testifying on the petitioner's behalf is not made known to the opponent in a timely manner allowing for adequate investigation, a request can be made to interrupt the trial. The approval or rejection of the request specified above rests within the free discretion of the court. The court may order the accused removed from the courtroom during the hearing of witnesses, if it is feared that the presence of the accused might prevent the witness from telling the truth.
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How does the court weigh the arguments pro & con of my innocence?

The court may weigh the evidence according to its own discretion (§§261, 263 StPO). It is the judge’s duty to weigh the arguments pro and contra to your innocence to be convinced that you are really guilty. A guilty verdict requires the agreement of two thirds of the court – whenever the court consists of more than one judge (§265 StPO). The accused cannot be convicted for crimes other than those specified in the indictment accepted and approved for that particular trial. If additional violations of law come to light during the course of trial, the accused must be advised of this fact and must be allowed adequate time to prepare a new defense.
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I just read on “my” bill of indictment that there’s gonna be a psychologist as an expert witness at the trial. Are they gonna put me into an idiot trap with the verdict?

Maybe, maybe not. You will find out when the verdict will be announced. If it is probable that the accused will be confined to a mental institution or to a facility for treatment of addiction, a medical expert must testify regarding the condition of the accused at the main trial. The expert must have been able to examine the accused before the main trial (§247 StPO).
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Will I get the chance to a final pleading before the verdict will be announced?

After the hearing of each witness, expert, and any co-accused, and after the reading of each document, the accused is asked for his comment (§257 StPO). After the interrogation of the accused, the taking of evidence, and the hearing of individual witnesses, the public prosecutor and the defense attorney must be permitted, upon request, to make their comments. After the taking of evidence is completed, the public prosecutor and then the accused are given the opportunity to elaborate on their statements and to make motions (§258 StPO). The public prosecutor has the right to retort. The accused has the right to make the final statement. The accused, even if his defense attorney has made a closing statement, must be asked if he has anything further to add to his defense.
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During the initial hearing, the cops spoke English pretty well. As I just learned that this dude of a judge doesn’t want to speak English, do I now have to learn German in a snap all of sudden?

If your command to German is not at least neat to near to that of a German native speaker, make sure your defense attorney timely applies for an interpreter (§259 StPO). The judge is not supposed to speak English as the language of the court is German (§185 I 1 GVG, Art. 20 III, 2 II GG). An interpreter must translate orally to him at least the final and closing motions and statements made by the public prosecutor and the defense attorney.
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These proceedings are taking so endlessly long. When will it be over and my innocence proved? When does the main trial close? Will I get the verdict mailed to me afterwards?

The main trial closes with the announcement of the sentence (§260 StPO). The text of the verdict has to specify the offense or offenses of which you are being convicted – if you are not acquitted. If a criminal or illegal act has a special designation (as appearing in the Strafgesetzbuch [German Criminal Code], such designation(s) must be used. The closing statement of the verdict has to cite the paragraphs, sections and subsections, numbers and letters which were used in the determination of the sentence. Understand this as an exact quoting of the law. Some time after the last hearing and announcement of your sentence, you will receive the verdict in written form serviced to you, your attorney, and your foreigners office.
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Comment:

If a fine or a punishment in money (Geldstrafe) is imposed, the verdict must state the number of days the convicted person would have to serve in lieu of payment and at which rate per day of detention the fine would be paid. For example: a fine of € 600 would require 40 days of detention defrayed at € 15/day. If you default on your payments, you will have to serve the number of days passed in the judgment.
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Shortly before the judge wanted to retreat to consider a verdict, he asked me if I would be willing to visit a drug clinic that to get off drugs. Under the condition that I visit a clinic and complete therapy, I can go on probation. Gosh, that was awfully kind of him to have such a heart with me.

Well, that I nothing uncommon – it is legal, §265a StPO. If alternative means of compensation appear appropriate, you must be questioned whether you are willing to perform certain compensatory acts, like charitable work, paying money to a charitable organization. Consider it something more and different than just making good. If you are to submit yourself to therapy or are to be institutionalized at a special institution, you must be asked whether you voluntarily agree to such a program.
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Gee, yes, I did something wrong but it was only a petty matter. Upon detection, I immediately admitted my guilt and was always supporting the investigation. Does German law also grant probation?

Yes, German law also grants the possibility of probation. If the sentence to be imposed is less than one year imprisonment, the court may suspend the sentence on probation if it is expected that the convicted person will not commit a criminal act in the future. The personality of the convicted person, his former life style, the circumstances of the act and his expected behavior after release are taken into account (§§56, 56a StGB). The court determines the period of probation, which may not exceed five years and may not be less than two years.
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What are my rights when I’m not satisfied with the verdict? Can I appeal?

Generally, yes. You, with required assistance of your defense attorney, or the public prosecutor have the right to submit the appropriate petition for appeal (Berufung, §312 StPO) or revision (Revision, §341 I StPO) to the trial court within one week of the oral announcement of the court's judgment (Verkündung des Urteils, §260 StPO). If you were not present when the judgment was orally announced, the one-week period starts when the written judgment has been served. Your defense counsel must submit the brief supporting the appeal no later than 30 days following the service of the written judgment to the accused. Only the public prosecutor may appeal judgments from the Higher Regional Court (Oberlandesgericht) or Federal Court of Justice (Bundesgerichtshof). If the public prosecutor appeals the time imposed, the higher court may uphold or even increase the punishment adjudged by the lower court. Appeals from the criminal division of the Local Court (Amtsgericht) may result in a complete new trial (Berufung), or only an examination of the sentence, depending on the extent of the appeal requested. Appeals from a penal chamber (Strafkammer) of the Regional Court (Landgericht) involve only rehearings on questions of law (Revision). In case of a new trial, the court may omit the testimony of witnesses and expert witnesses heard during the lower court trial if it believes that testimony would be merely repetitious. German law protects you, as an accused, from being repeatedly prosecuted or subjected to double jeopardy. An appeal by the prosecution is not, however, considered double jeopardy.
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