I. Problem
As a rule, providing comprehensive and proper defense in sex crime cases is not only extremely challenging from a legal point of view, but also requires knowledge in psychological areas. Very often, it is a so-called four-eyes offense. It is a case of one person's word against another's. The search for the truth, or even just for a result in court, begins. The standard instrument in criminal court proceedings for assessing credibility is the expert opinion in psychology. As a rule, public prosecutors, courts and defense lawyers only agree to obtain such an expert opinion in the preliminary proceedings if special case groups or case situations are involved. If the "usual" standard problems are not present, criminal judges often take the view "that the assessment of the witness's fitness to testify and of the credibility is the court's very own task" and reject an expert opinion in general and also a submitted motion to supplement the evidence.
What begins now – with or without expert opinion – is the struggle with the respective goal of undermining the incriminating testimony by attacking credibility and/or trustworthiness or presenting the defendant's account as a "protective claim". The latter is to be achieved in each case by presenting the incriminating statement as credible, in order to devalue the defendant's (m/f) denying statement as a "protective claim" with this finding. If the expert establishes the credibility of the witness statement, then in practice all doubts of the judge are finally overcome and he will condemn the defendant, provided that the expert has adhered to the criteria developed by case law for the preparation of such expert opinions, the so-called "null hypothesis theory".
However, neither legal literature nor case law seems to have sufficiently considered the follow-up problem that would arise if one expert were to determine the credibility of the testimony of the only prosecution witness (m/f), but another expert were to determine the credibility of the detailed statement of the defendant. Could the expert opinion of the defendant be countered by the expert opinion of the witness for the prosecution? And would this so-called "non liquet" in civil law mean "in dubio pro reo" in criminal law? Would the judge perhaps even be obliged, following a relevant motion to take evidence, to obtain a counter-expert opinion on the credibility of a testifying defendant - whose testimony can be analyzed? In addition, it is to be discussed whether the presentation of a private counter-credibility opinion with exploration of the defendant can be a serious defense strategy.
II. Background – the polygraph
The examination of the defendant's statement as to its truthfulness has always occupied the courts and experts. One of the well-known but also most controversial milestones in this search is the "polygraph" (lie detector). Ultimately, the Federal Court of Justice found that, although it is not a prohibited method of examination if the defendant agrees (Section 136 a of the German Code of Criminal Procedure) and there is no prohibition on its use. However, the polygraph test is an unsuitable means of evidence in the sense of § 244 III 2 Alt. 4 StPO, since it is not a scientifically correct and reliable method. Corresponding motions to introduce evidence can and will therefore be rejected with reference to the case law of the BGH. A more recent decision even states that the polygraph does not even have any slight evidential value. Regarding the polygraph test and its validity, we refer to the essay by Rill/Vossel.
The bottom line is that even a polygraph test that has been obtained and made the subject of the main proceedings will have no effect on the judge's decision. It remains to be expected that an application for evidence to analyze the truthfulness of a statement using a polygraph will not be successful.
Necessity of credibility reports
When the Federal Court of Justice established certain minimum criteria for the requirements of credibility reports in its judgment of July 30, 1999, this was also done in an effort to avoid serious miscarriages of justice in the future, which had dramatically increased in the mid-1990s in the abuse trials of Coesfeld, Flachslanden and Wormsand which cast doubt on the ability of the criminal justice system to function in cases of sexual abuse in general. In this context, various requirements were established for the scientific nature of the credibility reports, in particular the application of so-called "null hypotheses", according to which a set of facts to be examined, for example the credibility of a specific statement, is to be negated until the negation is no longer compatible with the collected facts. This means that the expert must initially assume that the incriminating statement is untrue, and only in the event that this "untruth hypothesis" can no longer be reconciled with the facts presented in the statement may an "alternative hypothesis" be put forward, according to whichthe incriminating testimony is true. Only this approach sufficiently guarantees observance of the most important principle in criminal proceedings, "in dubio pro reo". Although the above judgment took a major step towards rehabilitating the judiciary in abuse proceedings, the Federal Court of Justice also stated in an obiter dictum that the trial judge, if he exceptionally considers it necessary to obtain a credibility report, must ensure that the minimum scientific requirements established in this regard are actually met. If, on the other hand, a party to the proceedings considers the scientific requirements not to have been met, he should work towards the appointment of a further expert as early as the trial court. If the court does not grant such a request, it is only obliged to provide a detailed statement of reasons for the rejection order if a specific defect in the first expert opinion is complained about. Only those who provide a substantiated objection will receive a substantiated decision. It is therefore still solely the court that can work towards the proper preparation of the often decisive initial expert opinion. The decision and the responsibility for the question of the reliability of the witness statement remain with the judge. For the defendant, however, the specific duty to object represents a high hurdle, which seems almost insurmountable without appropriate scientific training or the commissioning of a private counter-expert. Defense counsel must work with all their might to ensure that the scientific quality standards demanded are consistently adhered to. If a court accepts an expert opinion that does not work with the "null hypothesis standard", or commissions one, this deviates so far from a legally correct way of working that mistrust of the impartiality of the judge in the sense of § 24 StPO must be justified.
The particular problem of the statement-versus-statement constellation
The often-occurring statement-against-statement constellation in criminal proceedings, especially in those involving sexual offenses, in which the decision to convict or acquit depends on which of the statements the court believes, requires a special credibility test, an overall consideration of all relevantIn this context, particular attention must be paid to the circumstances of the statement and the motivation for making it. Often the accusation is related to family disputes. The resulting problem of cognitive dissonance, the conflict between memory and experience, is often the product of being influenced by precisely these circumstances. The credibility analysis of the alleged victim, which is always offered to resolve this dilemma, should only serve the judge as evidence to help him reach a decision, but it is no substitute for a careful evaluation of the evidence. However, for the defense, the situation becomes more acute if the expert opinion comes to the conclusion "credible" - taking into account the BGH decision of July 30, 1999.
Judgment of the court of fact and fair trial
If incriminating and "quality-certified" testimony is presented, an acquittal initially appears unlikely without further evidence/means of evidence speaking for the defendant. A conviction is to be expected with reference to the "protective claim" of the defendant. However, the defense must still counter this. The standard of review of the judge's assessment of the evidence is to be based on Article 2 II 2 GG in conjunction with 20 III GG, as well as the freedom-securing function of a fair, constitutional procedure. Due to the rights of participation granted to the defendant in criminal proceedings, which arise from the human dignity (Art. 1 I GG) and the principle of the rule of law (Art. 20 III GG) in addition to the constitutional procedural guarantees of the right to be heard (Art. 103 I GG) and to the lawful judge (101 I 2 GG), the instrument of a credibility report is also fundamentally available to the defendant.dignity (Art. 1 I GG) and the principle of the rule of law (Art. 20 III GG), the instrument of a credibility report must in principle also be made available to the defendant. In this way, sufficient account is to be taken of the general fundamental right to a fair trial, which is derived from the principle of the rule of law in conjunction with the general right to freedom (Art. 2 I GG). This "fair trial" principle has its roots in the fundamental rights and freedoms of the individual, guaranteed in a materially understood rule of law, in particular in the right to personal liberty threatened by criminal proceedings (Art. 2 II 2 GG), the liberty-securing function of which also requires attention in procedural law, and in Art. 1 I GG, which prohibits degrading a person to the mere object of state proceedings and therefore requires a minimum set of active procedural rights for the defendant. It is true that specific conclusions for the design of the proceedings may only be drawn from the principle of the rule of law if an overall view of all the circumstances clearly shows that the requirements that are indispensable under the rule of law are no longer met. However, in order to uphold the presumption of innocence, it must be demanded that all the reasons that speak against a possible perpetratorpossible offense are clarified and included in the decision, so that the decision can be rational and have a solid basis for a guilty verdict and the associated deprivation of liberty. In order to at least minimize the present danger of making an innocent person the victim of forensic error by basing the accusation on a single source of suspicion, the court must use all other recognizable evidence in the event of a conflict of testimony, even in the event of subjective conviction. While the alleged victim in a sex offense case is regularly subjected to a credibility assessment, the obtaining of an expert opinion to analyze the defendant's statement is the absolute exception. This is especially true in view of the fact that, according to the Federal Court of Justice, the assessment of the credibility of the defendant is part of the nature of judicial adjudication, so that corresponding motions to take evidence can usually be rejected with the simple reference to the court's own expertise. A (general) exception has so far only been recognized in the case of a special occasion, such as the psychosocial or psychosexual retardation of the defendant.
Establishing procedural equality
However, the disadvantage for the defendant is clearly inherent in this approach and is further reinforced by the fact that, on the one hand, the criminal proceedings reveal a court-friendly expert opinion in the case of almost complete lack of validity control and the simultaneous claim to certainty of many experts. In this case, the defendant is confronted with the fact of a prejudgment, a presumption of guilt in the sense of "in dubio contra reo", which is difficult - practically impossible - to shake. What is completely ignored here is that in the case of a victim-witness, the statement is actually a party statement. This shift towards the "party role" arose not least from cost considerations on the part of the victim ("Who will pay for my private prosecutor?") as well as other economic considerations due to ongoing civil proceedings ("My lawsuits have already been filed. How should it proceed from here?"). Such a statement does not actually "stand " above a detailed and analyzable statement by the defendant, but it is "quality certified". Ultimately, for reasons of equality of arms, it must be possible for the defendant to force the court to obtain a credibility assessment of the credibility of his testimony by means of a motion to take evidence. A corresponding motion to take evidence, correctly submitted by the defense, should not be rejected under § 244 III 2 Alt 4. StPO. The only way to correct this is to determine whether the defendant's statement is scientifically "analysable". Consequently, a statement-analytical expert opinion obtained by the defense regarding the defendant's statement is also a means of countering the "quality-certified" incriminating statement with a "quality-certified" disputing statement.
If both expert opinions come to the conclusion "plausible", the court has to decide according to general rules. In civil law, this would probably result in what is known as "non liquet". In criminal law, the question of the judge's conviction arises, as does the (ethical) preliminary question of whether a judicial conviction in the sense of a criminal law proof of the offense can or may exist at all if a conviction is not possible in civil proceedings. However, it must not be possible for the court to rely solely on the expert "quality-certified" testimony and for the defense not to seek to enhance the defendant's disputing testimony with expert opinions as well. As a last resort, privately commissioned exploration and assessment may also be considered.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.