When someone is accused of homicide, their entire social and economic existence is at stake—yet there are a multitude of scenarios in which even ordinary people can suddenly find themselves confronted with responsibility for the death of another human being in their everyday lives.
Defense in homicide cases: challenges and strategies
Defense in capital criminal proceedings, especially in cases involving allegations under §§ 211, 212 StGB (murder and manslaughter), faces particular challenges. The distinction between the two offenses is dogmatically controversial, emotionally charged, and often characterized by subjective assessments. While homicides in Germany are on the decline (1993: 5,140 cases; 2020: 1,994 cases), the classification of a crime as murder remains a central problem, primarily due to the characteristics of malice aforethought and base motives. These characteristics are difficult to grasp, as motives are ambivalent and their clarification depends heavily on the accused’s ability to introspect and the interrogation situation.
The problem of murder characteristics
The current legal situation promotes an asymmetrical negotiating position:
- Victim-perpetrator dynamics: Many homicides occur in close social circles (relationships, families). In such cases, the defense must reconstruct the course of the conflict in order to identify provocative or escalating factors—without defaming the victim.
- Right to remain silent vs. pressure to confess: Those who remain silent do not risk making incriminating statements—and those who speak run the risk of incriminating themselves, for example through unconscious revelations about “base motives.”
- Police interrogations are often decisive, but without early legal assistance, suspects can fall into traps when it comes to interpreting motives. The requirement for audiovisual recording is intended to offer protection, but informal preliminary discussions remain a gray area.
Defense strategies
Early legal intervention: Since the reform of the Code of Criminal Procedure (2010), defendants have had the right to consult a defense attorney before their first interrogation. This should be used consistently to uphold the right to remain silent and ensure fair interrogation conditions.
Homicides are rarely “coldly planned,” as they are on television, but are often acts of desperation. An empathetic but sober examination of the facts of the case can help to establish criminal responsibility (Sections 20, 21 of the German Criminal Code) or less serious cases (Section 213 of the German Criminal Code). Malice aforethought and base motives in particular are open to interpretation. Here, the defense can focus on contradictions in the evidence or alternative interpretations (e.g., crime of passion).
Need for reform and prospects
The criticism of Sections 211–213 of the German Criminal Code (StGB) is justified: the current provisions lead to legal uncertainty and arbitrary judgments. A reform could
- Delete subjective characteristics such as “base motives.”,
- introduce clearer demarcation criteria or
- abolish the murder clause (§ 211 StGB) in order to link sentencing more flexibly to § 46 StGB.
Until then, the defense must continue to assert procedural rights and shed light on individual circumstances—not least to avoid life sentences, which often depend more on negotiating skills than on justice.
Successful defense in homicide cases requires legal precision, psychological sensitivity, and the courage to point out structural deficiencies in the system. Because behind almost every crime there is a human drama—and a defendant who must be treated fairly. The question of how to handle evidence correctly plays a role in the finer details, for example when establishing a motive. I myself have not only defended cases in this area, but also published essays on circumstantial evidence and DNA evidence.
At our law firm, we have been able to develop realistic solutions in challenging cases, such as even dismissals in cases of negligent homicide or suspended sentences in cases of bodily injury resulting in death. It just depends on the individual case.
murder allegations
When “ordinary people” are confronted with accusations of murder, it is rarely a case of cold-blooded killing—special circumstances play a role, and these often reflect human destiny.
The most difficult thing is to avoid pretrial detention—in Germany, pretrial detention is almost always imposed in cases involving homicide. This not only leads to a considerable amount of (media) prejudice, but also has a drastic impact on the defense situation. In fact, with a good strategy, pretrial detention can often be avoided, especially in cases involving indirect homicide.
The legal situation is difficult, as responsibilities for homicides are sometimes attributed more extensively in court than one might expect—especially in cases of bodily injury resulting in death. But on the other side, the defense, things also work differently than one might assume—the famous “affect” is much more difficult to accept than is the case on television.
Accusations of murder in everyday life
Attempted murder
When attempted murder is involved, the potential for defense is enormous—above all, it is often possible to avoid the initial remand in custody. However, this requires a targeted defense from the outset: talking too much can harm your defense; in the case of an attempt, for example, the aim must be to establish that there was a so-called withdrawal. Just a few careless words can be enough to destroy this basic defense scenario.
manslaughter
Manslaughter involves the deliberate killing of another person without particularly aggravating circumstances or motives. In cases of suspected manslaughter, it is almost impossible to avoid pretrial detention in Germany. In addition, anyone who talks too much will harm their own case and may even make the situation worse, as too many explanations can quickly raise motives that could lead to a change in the charge to murder (with a life sentence).
assault resulting in death
If bodily harm has been committed that ultimately leads to death, a prison sentence is still possible, which is no longer eligible for probation. This accusation is where the ideas of the judiciary and citizens clash in a particularly significant way. What is surprising to many people is considered a “completely normal” responsibility by the judiciary—for example, when a blow to the head causes a previously unknown aneurysm to rupture. This example quickly illustrates the far-reaching nature of the responsibility attributed by the judiciary.
Negligent homicide
Unfortunately, negligent homicide is an everyday offense: due to traffic accidents, this criminal offense has become somewhat relevant in everyday life. From bicycle accidents involving cars to disoriented elderly people wandering into the road, we have defended a large number of cases here—and the penalties imposed are just as numerous. In none of these cases were serious penalties imposed, but the aim of the defense must be to defend the specific situation with style.
Justifications: Self-defense and provocation
Two particularly relevant defense objectives are self-defense and provocation. Both aspects are also expressly recognized by German case law … but as always, it’s not quite that simple. In both cases, the presentation of evidence is a particularly important issue, which can prove to be very tricky.Two particularly relevant defense objectives are self-defense and provocation. Both aspects are also expressly recognized by German case law … but as always, it’s not quite that simple. In both cases, the presentation of evidence is a particularly important issue, which can prove to be very tricky.
However, it should also be noted that in both cases, the courts tend to take a dim view. In the case of self-defense, for example, the courts examine whether it was appropriate in the situation, whereby the limits of a situation that allows for self-defense are already narrowly defined. In the case of provocation, on the other hand, the courts examine very closely whether provocation actually occurred and, above all, how severe it was. So it is not the case that one can simply invoke these grounds—one must prepare the ground early in the proceedings on which one then wishes to defend oneself in this way.
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Our law firm specializes in criminal defense, cybercrime, commercial criminal law including criminal tax law as well as IT law and manager liability. We only take on criminal defense cases for consumers—we are based in the Aachen area and operate nationwide.
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