Federal Court of Justice (BGH), Judgment as of 7/5/2007
File number 4 StR 540/06

Key issues

Criminal proceedings regarding rape; assessment of a witness’s credibility is the task of the trial judge; comments on the question of when it is necessary to obtain an expert opinion.

Summary

The highest appellate court (BGH) denied the appellant’s appeal. In February 2006, the appellant was sentenced by the court of first instance to imprisonment for a term of seven years for, among other things, rape. The appellant particularly objected to the fact that the court of first instance had denied applications for obtaining an expert opinion on the credibility of the victim-witness. The appellant argued that an export opinion had been necessary because the witness had allegedly made inconsistent statements at the time she was questioned by the police.

With respect to this point, the BGH held that the assessment of credibility is fundamentally the task of the trial judge. It is only if the particular matter is of such a specialized nature that the judge’s knowledge does not suffice will it be necessary to supplement this with an expert’s opinion.

The appellant had made a variety of allegations in an attempt to imply that the witness was psychologically disturbed and to undermine her credibility. This, as well as the fact that the witness had lapses of memory during the court proceedings due to her state of inebriation during the act, did not make it necessary in the opinion of the court to obtain an expert opinion, because her description of the act when questioned by the police coincided with that which was later accepted by the court.
Furthermore, an expert opinion will be even less necessary when there are other facts/circumstances that corroborate the witness’s testimony. This was the case here in the form of traces of the accused’s blood.

Decision in full text:

BGH_05_07_2007 (PDF, 117 KB, not barrier-free, in German)

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