Evidence assessment in sexual offences

In our practice, we frequently experience the closure of cases in sexual criminal law. Approximately half of all cases in sexual criminal law are closed during the investigation without charges being brought. The closure of cases in public prosecutor investigations in Germay is the result of evidence assessment, in which the defence can have a significant impact.

Evidence assessment in sexual offences

Sexual offence proceedings are predominantly based on witness statements and often focus on assessing the credibility of a single incriminating witness statement. This extreme focus occurs primarily when there is no other evidence, and especially when there is no objective evidence. However, we are increasingly seeing cases in which, in addition to a single incriminating witness statement, there is minor and major circumstantial evidence from chat messages (which can be quite problematic). And even then, the credibility of the single incriminating witness statement is still the focus.

Psychological expert opinion on testimony in criminal proceedings

The assessment of the credibility of witness statements in sexual criminal law in Germany fills volumes of supreme court case law. The most important guiding principle of this case law is that the assessment of credibility in the judgment of the court must be comprehensible and cannot be based solely on the gut feeling of the trial judge. Criminal defence in sexual offences is therefore based on supreme court case law, which rationalises the assessment of witness evidence by the trial judge, e.g. the important decisions of the Federal Court of Justice (BGH) from 1998/1999 in volumes 44 and 45 (BGHSt 44, 153; BGHSt 44, 256; BGHSt 45, 164).

The motive of revenge of the main witness for the prosecution

In many decisions (see only BGH 5 StR 246/13), the Federal Court of Justice has overturned a conviction by the regional court for rape within the meaning of Section 177 of the German Criminal Code (StGB) because the regional court had not sufficiently examined the origin of the testimony and the testimony behaviour of the witness for the prosecution and had not properly considered a possible motive of revenge of the main witness for the prosecution.

German Lawyer specialising in sexual criminal law 

In sexual criminal law, too, it ultimately comes down to the facts of the case, of which the court is fully convinced after hearing the evidence in the criminal trial. There must be no doubt in the court's mind.

What exactly are doubts in Gerrman criminal proceedings?

Doubts in a criminal law context refer to uncertainty or ambiguity regarding the facts that are relevant for the assessment of a criminal offence. These doubts can relate both to the external circumstances

• what did the defendant actually do?

and to the internal facts (the perpetrator's intent)

• what did the defendant actually think?

These doubts can relate both to the objective facts (the external circumstances) and to the subjective facts (the internal facts) that are decisive for determining criminal liability. The principle of in dubio pro reo states that doubts about the objective facts and also about the subjective facts work in favour of the defendant.

In German criminal proceedings a conviction is only permissible if, after evaluating the evidence, the trial judge is fully convinced of the facts relevant to the decision.

In doing so, the judge may disregard purely theoretical doubts that cannot call his conviction in the specific case into question. We refer to this as ‘reasonable doubt’. Reasonable doubt on the part of the trial judge is doubt that remains after a comprehensive and complete assessment of the evidence and which prevents conviction of the defendant's guilt. In such cases, the principle of in dubio pro reo must be applied in favour of the defendant.

The court owes the defendant a comprehensive and complete assessment of the evidence. When assessing the evidence, the court must not accept witness statements as true without examination or even allow the conclusiveness of the witness statement to be sufficient. In German sexual criminal law, the statements of victims of sexual violence must be critically examined. This applies in particular in cases of conflicting testimony, where distortions of memory must be clarified by the court. Suggestive influences on witness testimony by third parties must be examined, as must the emergence of pseudo-memories or false memories.

The written judgement must later show that the trial judge recognised all circumstances that could influence his decision, included them in his considerations and assessed them in an overall view. In the case of allegations of sexual offences, this also applies to possible connections that occurred on the sidelines, e.g. with family disputes in the background or particular strains on a relationship.

Sexual offence – discontinuation of proceedings before charges are brought

The assessment of evidence is not only a matter for the criminal judge, but also for the public prosecutor in the preliminary investigation. Depending on the outcome of the assessment of evidence, a preliminary investigation into a sexual offence may also be discontinued before it even reaches court through the filing of charges. It is not unusual for the public prosecutor's office to then justify in multi-page dismissal orders why it has discontinued the proceedings after a thorough assessment of the evidence.

Are public prosecutors already bound by the principle of in dubio pro reo in criminal proceedings during the preliminary investigation?

The principle of ‘in dubio pro reo’ in criminal proceedings is a substantive legal decision-making rule which states that, in case of doubt, the decision must be made in favour of the defendant. ‘In dubio pro reo’ is only applied after the assessment of evidence has been completed, if the court cannot reach full conviction of a fact relevant to the decision. This does not preclude public prosecutors from expressing their doubts about incriminating witness statements in their decisions to discontinue proceedings, which are also addressed to the ‘victim witnesses’, during the preliminary investigation. However, the principle of in dubio pro reo is only really applied as a rule relevant to the decision when the court reaches its verdict. The principle of doubt is a central rule in criminal proceedings, ensuring that if the evidence is insufficient for a conviction, the decision must be in favour of the defendant. Otherwise, the trial judge must have attained complete certainty about the facts relevant to the decision after evaluating the evidence in order to pronounce a conviction. This conviction must be reached in a procedure that is legally formal and complies with the principles of the rule of law. The court may not include inadmissible evidence in its considerations, which can be a difficult task when forming a conviction if statutory prohibitions on the use of evidence apply. If, after evaluating the evidence, the trial judge cannot reach a full conviction regarding a fact relevant to the decision, he must rule in favour of the defendant.

What, for example, gives rise to doubt in a rape allegation?

Doubt in the assessment of rape cases can arise from various aspects relating either to the evaluation of evidence or to the legal assessment.

Situations in which it is one person's word against another's and there is no objective evidence are always problematic for courts. This may be due to ambivalent behaviour on the part of key witnesses and – not infrequently – also calls into question the determination of the perpetrator's intent. The perpetrator's intent is often questionable in cases of initially consensual sexual acts that continue, and sometimes also in cases of acts within the context of long-term relationships.

Do expert opinions need to be reviewed?

In sexual criminal law, many expert opinions – including psychological statements – are obtained from experts before the court of fact makes its decision. The statements of experts then constitute evidence. Therefore, the assessment of expert opinions often plays a decisive role. If there are doubts about the results of an expert opinion, these must be clarified by the court. The trial judge may agree with an expert if he or she can assess the conclusiveness and legal correctness of the opinion. The assessment of evidence is a matter for the trial court, and a lack of understanding cannot be compensated for by merely reproducing the expert opinion. Expert opinions must be carefully reviewed, particularly in sexual criminal law, and later presented in the grounds for the judgement. This also serves as a means of self-monitoring for the court to ensure that the expert opinion is conclusive and free of legal errors.