In German criminal proceedings, prosecutors and police must investigate not only incriminating circumstances, but also circumstances that may exonerate the accused. However, if obvious investigative steps are not taken, an incomplete case file can develop to the detriment of the accused.
Key Takeaways
- Under Section 160(2) of the German Code of Criminal Procedure (StPO), the public prosecution office must investigate both incriminating and exonerating circumstances.
- Investigative gaps may arise, among other things, when authorities fail to examine crime scenes, secure video footage, or evaluate evidence that may help the defense.
- Uncritically accepted statements, inaccurate translations, and incomplete case files can also significantly impair the defense.
- As a general rule, accused persons should only make statements about the allegations after their defense lawyer has reviewed the case file and provided legal advice.
- Once charges have been filed, the defense may raise objections during the intermediate proceedings against the opening of the main trial.
The Prosecutor’s Duty of Objectivity
German criminal procedure contains a central principle: the public prosecution office is not merely an authority that brings charges. It is also an objective investigative authority.
Section 160(2) StPO expressly provides:
The public prosecution office is required to ascertain both incriminating and exonerating circumstances and to ensure that evidence the loss of which is to be feared is taken.
This principle is highly significant in criminal proceedings. The public prosecution office may not limit itself to confirming an existing suspicion. Instead, it must investigate the facts comprehensively and also pursue circumstances that speak against criminal liability or against the accused’s involvement.
In criminal defense practice, however, it becomes apparent time and again that prosecutors and police do not investigate with the same level of care in both directions in every case. This does not mean that one-sided investigations are the norm. In many cases, the investigative authorities work carefully and fairly. Still, exonerating aspects are repeatedly clarified too late, only incompletely, or not at all.
For the accused, this can have serious consequences. The further a criminal case progresses, the greater the pressure often becomes to defend against a case file that has already hardened in one direction.
What Are Investigative Gaps in Criminal Proceedings?
Investigative gaps exist when authorities fail to carry out obvious, legally permissible, and truth-relevant investigative measures, or carry them out only incompletely.
This may be the case, for example, when a crime scene is not examined, video recordings are not secured in time, exonerating chat histories are not evaluated, or a complainant’s statement is accepted without critical review.
For the defense, such gaps are of central importance. Evidence that was never investigated cannot later be readily considered in favor of the accused. That is precisely why a criminal defense lawyer must review the case file early. The review should show whether the file is complete and whether the public prosecution office also investigated circumstances that may exonerate the accused.
Typical Investigative Gaps in Criminal Cases
In criminal defense practice, certain patterns appear again and again. The following situations are especially common:
1. Failure to Examine the Crime Scene or Secure Video Footage
When a criminal allegation depends on the actual conditions at a specific location, a crime-scene examination may be decisive. This applies, for example, when it matters whether certain objects were present. It may also matter whether a particular sequence of events was physically possible or whether traces at the scene could have been secured.
In such cases, a search or another investigative measure under the rules of the German Code of Criminal Procedure may be obvious. If such a measure is not carried out, potentially decisive facts may remain unresolved.
This is particularly problematic with video footage, because many surveillance cameras store recordings only for a short period of time. If the investigative authorities do not secure such recordings immediately, they may be lost permanently. For the accused, this can be especially serious if the footage could have helped establish facts in their favor.
The defense should therefore examine at an early stage whether there are video recordings, digital traces, location data, chat messages, witnesses, or other exonerating evidence that must be secured.
2. Inadequate Evaluation of Scientific Evidence
Investigative authorities also do not always evaluate forensic findings with the necessary depth. This concerns, in particular, DNA traces, toxicological reports, forensic medical findings, or other scientific evidence.
A negative finding, meaning a result that does not incriminate the accused, must not be dismissed too quickly as irrelevant. Likewise, an incriminating finding must not be overvalued without a precise assessment of its evidentiary significance.
Forensic results must always be viewed in connection with the specific allegation. What matters is not only whether a finding exists, but what it actually proves and what it does not prove. In this context, the defense may need to obtain supplementary expert opinions or suggest that an additional expert report be commissioned.
3. Statement Against Statement: Lack of Forensic Psychological Assessment
Cases in which the incriminating basis consists primarily of the statement of a single person are especially sensitive. These “statement against statement” situations occur particularly in sexual offense cases, bodily injury cases, threat cases, or conflicts within families.
In such cases, it is not enough merely to reproduce the complainant’s statement. The court must examine the credibility of the statement with particular care. This includes considering, among other things, consistency of the statement, richness of detail, possible motives to falsely incriminate, contradictions, expansions of the account over time, and how the statement came into existence.
Additional circumstances may create doubts about the reliability of the statement. These include, for example, mental illness, trauma, significant contradictions, or indications of outside influence. In such cases, a forensic psychological assessment may be required.
If an expert assessment is not obtained despite obvious doubts, this may constitute a significant investigative gap. The defense should clearly work out this deficiency no later than in the intermediate proceedings.
4. Accepting the Criminal Complaint Without Critical Review
A criminal investigation often begins with a criminal complaint. That complaint, however, is only the starting point of the investigation, not its result.
At times, investigative authorities adopt the complainant’s account almost unchanged into the case file. This becomes problematic in particular when contradictions between different interviews, expansions of the statement, or possible sources of information are not clarified.
The public prosecution office must also examine how an incriminating statement came about. Did the complainant speak with other people about the alleged facts? Was there prior information? Did the account change over the course of the proceedings? Are there personal interests, conflicts, or motives to incriminate the accused?
Such questions can be decisive for assessing the credibility of a statement. If the investigative authorities do not clarify these questions, the defense can address them in a targeted way.
5. Premature Statements by the Accused
Many accused persons assume they can clear up an allegation by giving a quick explanation. Especially accused persons who are innocent often feel the impulse to speak immediately with the police or prosecutors.
That is understandable, but dangerous.
The accused has the right to remain silent. This right is not an admission of guilt. Rather, it is a central defense right. No one is required to participate in their own incrimination. As a general rule, a statement should only be made after the complete investigation file has been reviewed and after consultation with a criminal defense lawyer.
Even well-intentioned explanations carry risks: the police may misunderstand them, record them incompletely, or place them in an incriminating context. This is particularly risky if the accused does not have a secure command of German or cannot fully assess the legal significance of their statements.
From a defense perspective, the rule is therefore clear: Do not make a statement without first speaking to a criminal defense lawyer.
6. Interpreter Issues During Police Interrogations of Accused Persons
For accused persons who cannot reliably understand and express themselves in German, the quality of interpretation can be decisive. An inaccurate translation can change the substance of a statement and have serious consequences for the further course of the criminal proceedings.
In practice, interrogations sometimes take place in basic English even though neither the accused nor the officers have a sufficiently secure command of the language. In some cases, the police bring in individuals who speak the language but lack the necessary legal and linguistic precision.
Terms of criminal procedure in particular must be translated accurately. Terms such as search warrant, accused person, witness, right to remain silent, or court-appointed defense lawyer have specific legal meanings. Therefore, they require precise translation.
For accused persons in Germany who do not have a secure command of German, technically and linguistically accurate translation is indispensable. Without a clear understanding of their rights and the legal significance of their statements, accused persons cannot effectively exercise their defense rights.
The defense should therefore examine whether the rights instruction was correct and understandable. It must also be clarified whether a qualified interpreter was present and whether the written record accurately reflects the statement.
Linguistic and legal misunderstandings are especially common in cross-border criminal proceedings. In such cases, the defense lawyer should not only understand German criminal procedure, but also the language and legal background of the client. This makes it possible to identify and correct misunderstandings at an early stage.
Further information on this topic can be found in the International Criminal Law section.
7. Incomplete Access to the Case File
Another recurring issue is incomplete access to the case file. The right of access to the file under Section 147 StPO is of central importance for the defense. Without full knowledge of the investigation file, the defense lawyer cannot assess what the allegation is based on and which exonerating circumstances are missing.
The file does not include only interview records and reports. Video recordings, bodycam footage, chat histories, voice messages, digital data extractions, photographs, expert reports, trace files, related files, and other data may also be relevant.
As the authority in charge of the investigation, the public prosecution office is responsible for submitting the complete files to the court. The court, too, must examine whether all documents relevant to the decision are available.
For the defense, this means that it must review the investigation file carefully and completely. If documents are missing, the defense should raise this deficiency and request that the materials be added to the case file.
Why a Criminal Defense Lawyer Should Be Involved Early
Criminal proceedings are regularly stressful for accused persons. The issue is not only a possible penalty. Already during the investigation, searches, seizures, account freezes, professional consequences, immigration-related consequences, or the withdrawal of a driver’s license can place a heavy burden on the person affected.
The earlier a defense lawyer becomes involved, the better the accused’s rights can be protected and avoidable mistakes can be prevented. A criminal defense lawyer can, in particular:
- request access to the case file,
- secure exonerating evidence,
- develop independent investigative approaches,
- suggest further investigative measures,
- prepare a written defense statement,
- examine errors in interrogations,
- work toward the termination of the proceedings,
- raise objections during the intermediate proceedings against the opening of the main trial.
In many cases, a written statement after reviewing the case file is more appropriate than a spontaneous statement to the police. This allows the defense to respond specifically to the contents of the file and avoid unconsidered statements later being used against the accused.
The Intermediate Proceedings: An Underrated Opportunity for the Defense
After charges have been filed, the main trial does not begin immediately. First, the court examines in the intermediate proceedings under Sections 199 et seq. StPO whether the main trial should be opened.
Under Section 203 StPO, the court opens the main trial only if the accused appears sufficiently suspected of a criminal offense. This means that, based on a preliminary assessment, a conviction must appear more likely than not. If that threshold is not met, the court must refuse to open the main trial under Section 204(1) StPO.
The intermediate proceedings are therefore an important filter. They are intended to prevent accused persons from being exposed to a public trial when the level of suspicion is insufficient. In practice, the opening of the main trial is often ordered. Nevertheless, the intermediate proceedings can be very important for the defense.
After service of the indictment, the accused is given the opportunity under Section 201 StPO to raise objections during the intermediate proceedings against the opening of the main trial. In such a written objection, the defense can in particular set out which investigative steps the authorities failed to take and which evidence they did not evaluate, or evaluated only incompletely. This may show that the sufficient suspicion required to open the main trial does not exist.
Especially in cases involving significant investigative gaps, a carefully reasoned written objection is therefore an important defense tool. It makes it possible to draw the court’s attention to gaps and contradictions in the previous investigation before a public trial takes place. The court may then refuse to open the main trial or order supplementary evidence to be taken under Section 202 StPO.
What Accused Persons Should Do
Anyone confronted with a criminal allegation should take the situation seriously and proceed strategically. From a defense perspective, the following principles are especially important:
1. Do Not Make a Statement Without a Defense Lawyer
The right to remain silent is one of the most important rights of the accused. As a general rule, a statement should only be made after the case file has been reviewed and legal advice has been obtained.
2. Have Your Defense Lawyer Request Case File Access Early
Only the investigation file shows what evidence actually exists and which investigative steps may be missing. As a rule, access to the file is obtained by the defense lawyer.
3. Secure Exonerating Evidence
Video recordings, chat histories, witnesses, location data, or other evidence may be lost. It is therefore necessary to examine early on what should be secured.
4. Point Out Specific Investigative Gaps
General criticism is not enough. The defense must precisely set out which investigative steps were not taken and why they are relevant to the decision.
5. Use the Intermediate Proceedings Actively
After charges have been filed, the defense may raise objections against the opening of the main trial. Especially in cases involving incomplete investigations, this can be a decisive procedural stage.
Conclusion: Investigative Gaps Can Determine Guilt or Innocence
Section 160(2) StPO is a central provision of German criminal procedure. The duty of the public prosecution office to investigate exonerating circumstances as well is not merely a recommendation, but a statutory obligation.
If prosecutors or police fail to take obvious investigative measures, this can have serious consequences for the accused. The evidence that was never pursued may later prove decisive for the question of guilt or innocence.
If you are accused in a criminal investigation, you should seek legal assistance as early as possible. A criminal defense lawyer can review the investigation file, make deficiencies visible, secure exonerating evidence, and align the defense strategically.
Further information on defense in criminal proceedings can be found in the Criminal Defense section. Economically complex investigations are also repeatedly relevant in commercial criminal law. Here, it is particularly important to carefully review alleged damages from a civil-law perspective.
FAQ: Investigative Gaps in Criminal Proceedings
1. Must the public prosecution office secure exonerating evidence on its own initiative?
Yes. Under Section 160(2) StPO, the public prosecution office must also investigate exonerating circumstances. If evidence is at risk of being lost, it must generally ensure that the evidence is secured in time. Nevertheless, the defense should identify specific exonerating evidence as early as possible.
2. What should I do if video footage or chats could help my defense?
Inform a criminal defense lawyer as early as possible about where the recordings or messages are located and how long they will remain available. Video footage is often overwritten after a short time. Digital messages should also be secured in a way that allows their origin and completeness to be verified later.
3. Should I make a statement to the police even if I am innocent?
Even an accused person who is innocent should not make a premature statement about the allegations. First, a defense lawyer should review the investigation file. The defense can then determine whether a statement is advisable. If so, it can also decide whether the statement should be submitted in writing or made during an interrogation.
4. How Can the Defense Tell Whether the Case File Is Complete?
The defense lawyer examines, among other things, whether reports or notes refer to attachments, videos, bodycam footage, chat histories, expert reports, trace files, or other data that are missing from the transmitted file. If gaps exist, the defense lawyer can request that those materials be added or provided.
5. What can the defense do about investigative gaps during the intermediate proceedings?
After service of the indictment, the defense may raise objections under Section 201 StPO against the opening of the main trial. It can identify specific investigative gaps and explain why sufficient suspicion does not exist. The court may order supplementary evidence to be taken or refuse to open the main trial.
6. When must an interpreter be brought in during an interrogation?
An interpreter is required if the accused cannot reliably follow the interrogation in German or cannot express themselves with sufficient clarity. What matters is not nationality, but whether the accused safely understands the rights instruction, the questions, and the significance of their statements.
7. When should I involve a criminal defense lawyer?
A criminal defense lawyer should be involved as early as possible, ideally as soon as the accused learns of the investigation or receives a police summons. Before any statement is made, the case file should first be reviewed and the defense strategy appropriate to the specific case should be assessed.
Contact
If you are accused in criminal proceedings or have the impression that the police or public prosecution office is investigating one-sidedly, you should seek legal advice at an early stage.
Barba & Partner Rechtsanwälte PartGmbB advises and defends accused persons in German, international, and German-Italian criminal proceedings.
Contact us here or book an online initial consultation.
The content on this page is for general information only and does not replace legal advice tailored to your specific case.
Last updated: June 30, 2026. Legal frameworks, authority practice, and case law may change.
Author: Salvatore Barba, lawyer in Germany, certified specialist lawyer for criminal law, and avvocato stabilito (Milan)
