Having the law on your side does not necessarily mean you will get justice—this is nothing new, but it is especially true in criminal law!
Wide Discretion of Judges and Prosecutors
Nowhere else do courts have as much freedom and discretion as in criminal law, considering the broad legal consequences available: from case dismissals with or without financial penalties to prison sentences ranging from a few months to many years. (For example, in a simple theft case, a judge can choose to issue only a warning, impose a fine, or sentence the defendant to up to 5 years in prison!)
Decisions Often Based on Gut Feelings
Making matters worse, criminal verdicts often rely on purely subjective and barely verifiable evaluations of evidence. Unlike in civil law, decisions are frequently made based on instinct.
“Truth is not pursued at any cost,” is the phrase often used to justify why, in German criminal law, the verdict is based on a judge’s personal conviction. Ultimately, their moral views, prejudices, and feelings determine how evidence is assessed and whether the outcome is an acquittal, case dismissal, or prison sentence. There are no strict rules of evidence dictating when a judge must have reasonable doubts. Quite the opposite: a judge may draw any conclusion from evidence, regardless of whether other conclusions are equally plausible. Even when multiple conclusions are possible, the judge is not required to choose the one most favorable to the defendant. The law grants judges the power to convict based on doubtful evidence, as long as they personally have no doubts—even if all other trial participants or observers believe they should.
In “one person’s word against another’s” cases, a conviction only requires the judge to believe one witness more than the defendant. Often, physical symptoms, unusual behavior, or lack of verbalization from a witness (or even the defendant) can lead to completely false judicial conclusions. If a witness cries intensely or struggles for words, some may assume this signals truthfulness—despite no scientific basis for such assumptions!
Worse still: even in cases involving technical expertise (e.g., forensic data analysis, forensic medicine, complex psychological evaluations), a judge is not required to consult an expert! If they believe they possess the necessary knowledge—something they assess and decide themselves—they can simply forgo expert testimony.
The Criminal Trial Presents Many Adversaries
As if all this unpredictability weren’t enough (“in court and on the high seas, one is in God’s hands”), a defendant faces an overwhelming number of procedural adversaries in criminal law, including prosecutors convinced of their guilt, biased private plaintiffs and their attorneys, and court-favored expert witnesses. Not to mention the court itself, which, depending on its composition, can consist of up to three professional judges and two lay judges.
At the start of a trial, professional judges have already determined that the defendant is likely guilty—otherwise, the case would not have proceeded to trial (a court only opens main proceedings if it believes there is sufficient suspicion against the defendant).
A frequent alliance effect can be observed between prosecutors and judges. Because the prosecutor’s indictment creates a strong prejudice in the judge’s mind, professional judges often adopt the prosecutor’s viewpoint entirely—along with lay judges, who are frequently “aligned” early on by the professionals.
To complete the “conviction machine,” even court-appointed defense attorneys are often selected by the presiding judge, who may favor attorneys more likely to cooperate with the court.
80% of Verdicts Are Convictions
Given these circumstances, it’s hardly surprising that criminal law lacks a “balanced and neutral” starting position. This is reflected in a conviction rate exceeding 80%, which the judiciary, notoriously immune to criticism, interprets as proof of prosecutors’ and judges’ effectiveness. The pressure on defendants in criminal trials is enormous—especially in first-instance trials at the district court level, where very limited appeal options mean there is often no real second chance for a retrial.
In short: the outcome of a criminal case depends heavily on the attorney you choose!
Competence and Experience Alone Are Not Enough
Successful criminal defense is not just about claimed expertise and experience. It requires interdisciplinary qualifications, specialization in key areas, social competence, determination, and the ability to engage with judges and prosecutors on an equal footing.
This last factor—meeting the judge and prosecutor at their level—is crucial to success. Criminal trials are highly hierarchical, and judges and prosecutors often perceive defense attorneys as inferior, assuming they would have pursued a judicial or prosecutorial career if they were truly skilled.
A defense attorney must counter this bias with an equally solid understanding of criminal law. A generalist lawyer will never match the knowledge and experience of someone who specializes exclusively in criminal defense—just as in medicine, where a specialist is always preferred over a general practitioner.
Specialization in Criminal Law: Like Medicine
Given that police, prosecutors, and courts have dedicated specialized departments for different criminal law areas (e.g., financial crime, tax offenses, sexual offenses, professional misconduct, medical law), an attorney should also have a clear focus in these areas.
Since most criminal trials heavily rely on witness testimony—especially in sexual offense cases—deep knowledge of forensic psychology is essential. This includes understanding statement validity, memory formation, possible motivations for testimony, and common inconsistencies in witness statements. These factors must then be assessed alongside criminological, psychological, and victimological research related to the alleged offense.
If a case is being heard in a district court, the attorney should also have expertise in appeals law and work with an appeals specialist to preserve essential objections in case of a wrongful conviction.
Conflict and Confrontation—Not for the Faint-Hearted
Throughout a criminal trial, confrontation, negotiation skills, and determination are essential. Criminal defense is a fight for the best possible outcome—whether that is an acquittal, case dismissal, or a fair sentence that considers all personal and professional consequences.
Where there is a reasonable chance of contesting the prosecution’s narrative, the defense must fight—especially when the evidence does not meet the standard for conviction, when legal issues are complex, or when other factors suggest a better outcome is achievable.
Faulty court orders must not be accepted without challenge; biased judges must be formally recused, and evidence collection must be compelled through appropriate motions—even against the court’s wishes.
Negotiation Skills and Willingness to Compromise
Conversely, sometimes shortening a lengthy trial through plea negotiations can be beneficial. However, this must not become the standard defense strategy, as it effectively surrenders the right to a fair trial.
The defense attorney must never simply facilitate the defendant’s conviction. The interests of the prosecution and defense are inherently opposed. If there is a realistic chance of acquittal or a significantly reduced sentence, the attorney must fight with all available legal tools.
Our firm is committed to maximizing every legal avenue in criminal proceedings and developing effective defense strategies that target weaknesses in the justice system.
