How is accusation different from conviction?

Help, my first plea - a cheat sheet!

3. The evaluation of evidence

If the accused does not admit the offense in the main hearing either, the taking of evidence represents the heart of the hearing and the pleading. The prosecutor must then appreciate the testimony (or the other evidence) and explain why he did it Witnesses For believable and his statement For believable holds.

A possible introductory sentence could be: " The public prosecutor is convinced that these facts are based on the accused's admission " and or "the testimony of the witness " and or " the visual inspection etc. "

Of course, more detailed explanations must then follow. Since this part of the pleading cannot be fully prepared at home, it is essential to make notes during the taking of evidence, which will then be used in the pleading. Example: "The witness ... credibly described that he killed the accused on the day of .... Watch in the ... street while watching this ... "

4. Legal appreciation

Within the legal assessment, it then only needs to be stated under which criminal provision the accused is guilty: "On the basis of these established facts, the defendant has made himself a criminal offense because of ... according to § ... StGB. "

5. Sentencing and application

An elegant transition from legal assessment to sentencing is as follows: "So the question arises, how is the accused to be punished?" Then there is the possibility of naming the range of punishment. However, this is not mandatory: “The law provides for the fact of ... a penalty of…. Imprisonment or fine. "

It must then be taken into account that the mitigating and tightening of penalties can lead to a shift in the scope of the sentence, Section 49 of the Criminal Code. When determining the sentence in the narrower sense, one weighs the circumstances that speak for and against the perpetrator with one another. The best way to do this is to prepare a table with the pros and cons arguments. Example: “It speaks in favor of the accused that he confessed to the crime at the main hearing today. Another factor that speaks for him is that he returned the stolen goods to the injured party in full. " and or “His numerous previous convictions are to be assessed to the disadvantage of the accused. Only last year he was sentenced by the AG ... to a prison term of ... on probation. Today's deed was committed within the two-year probation period. "

Then specify which punishment the court deems appropriate, the easiest way to do this using the following transitional sentence: "Taking into account all aspects of sentencing for and against the accused, the public prosecutor considers a fine / imprisonment of ... to be appropriate."

According to Section 38 of the Criminal Code, a distinction is made between life and temporary imprisonment. According to Section 39 of the Criminal Code, imprisonment is measured in months and weeks for less than a year and years and months for more than a year. According to § 56 StGB, a prison sentence of no more than one year can be suspended on probation if a positive social prognosis is available. In the case of a prison sentence that exceeds one year but not two years, suspension on probation can only take place if special circumstances exist.

A fine is to be imposed in daily rates in accordance with Section 40 of the Criminal Code. The number of daily rates (a minimum of 5, a maximum of 360) is determined by his guilt. The amount of a daily rate (minimum € 1, maximum € 30,000) is determined by the court, taking into account the offender's net income (Formula: monthly salary / 30). With a net income of € 1500, a daily rate of € 50 is therefore indicated. Depending on the federal state and the judge, expenses for rent, debts and maintenance obligations are deducted from the net income beforehand.

At this point it is also important to look back at the overall sentence formation according to §§ 53, 54 StGB, so that one is not surprised by it during the trial. Basically you use the highest individual penalty (so-called operational penalty) and increases this by half the total of the further individual penalties. The total penalty must not reach the sum of the individual penalties.

6. Additional penalties / measures

The driving ban according to § 44 StGB is a frequent secondary punishment. According to § 69 I StGB, the driver's license can also be withdrawn, according to § 69 III StGB the driver's license can be withdrawn and a blocking period can be applied for according to § 69a StGB. The withdrawal of the driving license is to be regarded as a measure. Both of these can often be considered in the case of drunk driving (Section 316 StGB) or unauthorized removal from the scene of the accident (Section 142 StGB):

Formulation example: "The prosecutor requests that the defendant's license be withdrawn and his driver's license withdrawn. I also apply to order that the administrative authority may not grant him a new driver's license before ... months have elapsed. "

7. Cost

According to § 464 StPO, a decision must be made ex officio about who bears the costs of the proceedings. Section 465 of the Code of Criminal Procedure stipulates that the accused must bear the costs if convicted. The request for costs is not mandatory. But it is a nice and clear conclusion to the plea: " Finally, I request that the defendant be ordered to pay the costs. "

I hope this cheat sheet helps you and I hope you enjoy your first session service!

- Jannina

(Trainee lawyer in BW, author on justillon.de and iurratio.de)