Wrongful Decisions and Retrials in Criminal Proceedings - A Nationwide Examination of Legal Practice in Retrials after Final Decisions in Germany

Abstract

The study examines the procedural course of retrials in criminal cases, the sources of errors, the prospects of convicted persons in claiming errors, and the legal reactions of the retrial courts to retrial requests in Germany. Court files pertaining to 512 successful and unsuccessful motions for retrial in the period from 2013 to 2015 in 14 German states were analyzed. Motions for retrial are filed in roughly equal proportions by the defense and the prosecution, with the latter also having a clear preponderance of motions in favor of the convicted person. The proportion of accepted motions for retrial (i. e. a retrial was ordered) is remarkably high, at 44,7 % overall, and even reaches 91,6 % for motions filed by the public prosecutor. In just under 40 % of retrial proceedings, the retrial court attested to an error in the original proceedings. In more than a third of these cases the identified error referred to the lack of fulfillment of the elements of the respective offense (a quarter of these cases involved false witness testimony while an additional quarter concerned misidentifications), in another third of these cases the error involved the lack of culpability of the convicted person at the time of the crime (almost exclusively with regard to Section 20 of the German Criminal Code), and in just under a third of these cases the error was identified with regard to the prerequisites for the trial or the sentencing (more than half involved an erroneous determination of the aggregated sentence). The analysis further shows that proceedings involving a penalty order are at an increased risk for errors caused by superficial investigations or cursory examinations of the known facts.