A motion for evidence pursuant to Section 55 StPO is the central legal instrument with which the accused in criminal proceedings can actively influence which facts are investigated. It allows for specifically requesting the taking of certain evidence if it is suitable for verifying, putting into perspective, or refuting the suspicion of a crime. As a result, criminal proceedings do not remain a one-sided investigative process by the public prosecutor’s office, but rather a rule-of-law procedure in which exculpatory circumstances must also be systematically considered.

The motion for evidence compels the law enforcement authorities to address specific facts and evidence introduced into the proceedings by the accused. It prevents investigations from being conducted in only one direction and ensures that contradictory or exculpatory information is examined in a legally binding manner.

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Function of the Motion for Evidence in Preliminary Proceedings

In preliminary proceedings, the motion for evidence serves to place the suspicion of a crime on an objective basis. While the public prosecutor’s office has the task of investigating both incriminating and exculpatory circumstances, in practice the focus is often on the incriminating side. The motion for evidence forces the proceedings to also consider those facts that speak against the suspicion of a crime.

It acts as a corrective against one-sided investigations. If an exculpatory witness is not heard, a technical expert opinion is not obtained, or an alibi is not verified, the accused can request exactly this evidence. This prevents the proceedings from being continued on an incomplete factual basis.

Formal Requirements for a Motion for Evidence

A motion for evidence must be formulated clearly and in a structured manner to be legally effective. It must not be kept general, but must clearly indicate what is to be proven and by what means. The law requires three mandatory core elements.

A motion for evidence must contain:

• the subject of evidence, i.e., the specific fact to be clarified, such as an alibi, the course of a certain event, or the presence of a person;
• the means of evidence, such as a witness, an expert opinion, a document, a video, or a technical analysis;
• the information necessary for taking the evidence, for example, the name and address of a witness, the location of a recording, or the exact description of a document.

In addition, it must be justified why the evidence is suitable for clarifying the subject of evidence. It is not enough to merely name a piece of evidence. It must be comprehensible why this specific evidence can clarify a significant fact. Only then is a legally verifiable basis created for the decision of the public prosecutor’s office.

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Subject of Evidence and Means of Evidence

The subject of evidence establishes which specific fact the proceedings are to clarify. It defines the core content of the motion for evidence and distinguishes it from mere assumptions. Anyone asserting an alibi, a course of events, or the presence of a person must state exactly which fact the court or the public prosecutor’s office should examine.

The means of evidence describes how this fact is to be proven. Typical means of evidence are witnesses, experts, documents, videos, or technical analyses. A motion for evidence remains ineffective if it does not name a specific means of evidence, because the authority cannot conduct a targeted taking of evidence without this information.

A precisely formulated subject of evidence in conjunction with a suitable means of evidence gives the proceedings a clear direction for examination. This allows the suspicion of a crime to be specifically verified instead of basing it on mere assumptions.

Justification and Suitability of the Evidence

A motion for evidence only takes effect if it conclusively justifies why the named evidence can contribute to the clarification of the subject of evidence. The mere naming of a witness or document is not sufficient. The motion must explain what specific insight the evidence is intended to provide and why this specific means can clarify the relevant fact.

The suitability depends on whether the evidence has a logical connection to the subject of evidence. A witness is only suitable if they personally perceived the alleged event. An expert opinion only helps if it clarifies a technical question that the proceedings cannot answer without expertise. A video recording is only suitable if it depicts the relevant time and place.

A precise justification prevents the public prosecutor’s office from dismissing the motion as unsuitable. Anyone who clearly demonstrates how the evidence can confirm or refute the suspicion of a crime creates a legally verifiable basis for a decision.

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Inadmissible, Unusable, and Impossible Evidence

Not every piece of evidence may be used in criminal proceedings. Inadmissible evidence violates legal prohibitions, such as when someone secretly records conversations or obtains data unlawfully. Such evidence may not form the basis for decisions in the proceedings.

Unusable evidence exists when the method of obtaining evidence violates procedural rights or fundamental rights. This includes, for example, statements made under pressure or evidence from unlawful coercive measures. The proceedings may not use such content to support the suspicion of a crime.

Impossible evidence concerns facts that cannot actually be gathered, for example, because an alleged witness does not exist or an object can no longer be found. A motion for evidence aimed at such evidence is futile and cannot lead to clarification.

The clear distinction between admissible and inadmissible evidence protects the proceedings from unlawful results and preserves the reliability of the basis for the decision.

Grounds for Refusal of Motions for Evidence

The public prosecutor’s office may only reject a motion for evidence in clearly regulated exceptional cases. The law thus protects the right of the accused to an effective defense and prevents motions from being ignored out of mere expediency or convenience.

A refusal is only permissible if:

• the subject of evidence is obvious or irrelevant to the suspicion of a crime;
• the means of evidence is unsuitable for proving a significant fact;
• the fact in question is already considered proven.

These grounds limit the public prosecutor’s office’s discretion to objective criteria. The authority must objectively examine every single point and may not rely on formulaic refusals.

If none of these grounds exist, the public prosecutor’s office must take the requested evidence. It may not reject a motion because it undermines the suspicion of a crime or calls the previous direction of the investigation into question. In such cases, the law requires an active taking of evidence.

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Taking of Evidence and Reservation for the Main Hearing

The Code of Criminal Procedure allows for a requested taking of evidence to be postponed to the main hearing. This instrument serves procedural economy, as some evidence is only meaningfully gathered before the court. However, the public prosecutor’s office must not abuse this possibility to delay crucial investigations.

A reservation is only permissible if the requested evidence cannot immediately eliminate the suspicion of a crime and if there is no danger of the evidence being lost. As soon as a piece of evidence is suitable for clearly exonerating the accused or if later access would be uncertain, the authority must gather the evidence immediately.

The reservation therefore does not protect the investigative authority, but rather the proceedings from unnecessary duplication of work. It must never lead to a proceeding continuing on an unverified suspicion, even though a simple piece of evidence could already clarify the facts.

Role of the Criminal Police in Motions for Evidence

In preliminary proceedings, the criminal police form the operative interface between the accused and the public prosecutor’s office. If a motion for evidence is received, the police may not ignore it or file it informally. They must either take the requested evidence themselves or formally forward the motion to the public prosecutor’s office.

The law thus prevents motions for evidence from getting stuck at the operative level. Through the incident report, the criminal police ensure that every relevant motion reaches the formal responsibility of the public prosecutor’s office and is legally reviewed there.

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Incident Report of the Criminal Police

The incident report is the statutory reporting obligation of the criminal police as soon as an order or decision by the public prosecutor’s office is required for a requested piece of evidence.

With this report, the public prosecutor’s office is formally involved in the decision and must decide on the execution or refusal of the requested taking of evidence.

Duties of the Public Prosecutor’s Office Regarding Motions for Evidence

The public prosecutor’s office bears the responsibility for the completeness of the investigation. If a motion for evidence is received, it must examine whether the legal requirements for a refusal are met or whether it will have the evidence taken. It must not rely on mere case files if a motion concerns a relevant fact.

If the public prosecutor’s office decides against taking evidence, it must notify the accused and provide reasons why the motion is not being implemented. This duty prevents motions from disappearing intransparently or silently. It enables the defense to legally categorize the decision and react to it.

Legal Consequences of Failure to Take Evidence

If the public prosecutor’s office fails to take required evidence, it violates the defense rights of the accused. Such an omission can lead to the proceedings being continued on an incomplete factual basis, resulting in erroneous decisions.

An unjustified refusal or delay can later have procedural consequences. When evaluating evidence, courts consider whether exculpatory evidence was wrongly not gathered. In serious cases, this can undermine the validity of an indictment or a judgment.

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Relationship to the Main Hearing

The main hearing forms the central framework for decision-making in criminal proceedings, but the motion for evidence already takes effect in the preliminary proceedings. Early taking of evidence can clarify or refute the suspicion of a crime before an indictment is even issued. This avoids a proceeding moving into the judicial phase based on a merely preliminary suspicion.

The reservation of individual pieces of evidence for the main hearing remains the exception. As soon as a piece of evidence is suitable for significantly exonerating the accused or preventing the loss of evidence, the law requires immediate gathering. The public prosecutor’s office must not use the main hearing as a pretext to delay crucial clarifications.

A properly utilized motion for evidence ensures that the main hearing does not become a mere review of incomplete investigations. It ensures that the court decides on a complete and verified factual basis.

Your Benefits with Legal Assistance

The motion for evidence is a precise defense instrument that only unfolds its full effect if it is used legally correctly and strategically. Errors in the subject of evidence, means of evidence, or justification frequently lead in practice to crucial motions failing or losing their effect.

Legal support ensures that

• exculpatory facts are introduced early and completely;
• motions for evidence are legally and soundly justified and not rejected for formal reasons;
• unjustified delays or omissions by the investigative authorities are recognized and contested;
• limits on refusal by the public prosecutor’s office are consistently exhausted.

Particularly in preliminary proceedings, the quality of the motions for evidence determines whether a case is dismissed or leads to an indictment based on an insufficiently verified suspicion. A professional defense ensures that the course of the proceedings is set correctly from the start.

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FAQ – Frequently Asked Questions

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