German criminal lawyer on case law: The BGH first shocked us a little

German Criminal lawyer on latest case law:

The BGH (judgment of 25.4.2018 - 2 StR 194/17) first shocked us a little when it stated in the grounds of its decision of 25 April that the Criminal Tribunal was not prevented from convicting a defendant if "testimony against testimony" was given and there were no further incriminating indications. If the Criminal Tribunal of the first instance is convinced of the credibility of the testimony of the sole prosecution witness, the principle of "in dubio pro reo" does not prohibit the conviction either. 

BGH on the "testimony vs. testimony" situation

But then the German Federal Supreme Court raised high hurdles again when now expressly requires the judge at the instance of fact to subject the testimony of the sole prosecution witness to a "special credibility examination", because in such cases the accused has only few possibilities of defence.

According to the case-law of the German Federal Court of Justice, the written grounds of the first instance judgment must show that the judge has recognised the entire circumstances which may influence the decision and included them in his considerations (see Federal Court of Justice of 10.1.2017 - 2 StR 235/16, Strafverteidiger 2017, 367, 368 mwN). In my opinion, "all circumstances" are a high hurdle over which hardly any court can jump, if it does not have any circumstantial evidence other than the testimony of the sole witness who testified.


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