The Final Word in Criminal Proceedings
The so-called ‘Final Word’ is a central concept in criminal procedure law. It refers to the right, enshrined in the Code of Criminal Procedure (StPO), of an accused person to speak for themselves one last time before the conclusion of the court hearing—especially before the judges deliberate on the verdict. In many respects, the Final Word is an important procedural guarantee and serves to protect the fairness of proceedings.
Legal classification and foundations
Historical development
The Final Word is deeply rooted in the history of criminal justice and was already a component of criminal proceedings in earlier European legal systems. The development of this right was significantly influenced by the idea of giving the accused one last opportunity to make a statement independently before the verdict.
Statutory regulation under the Code of Criminal Procedure
In Germany, the Final Word is regulated by Section 258 paragraphs 2 and 3 StPO. It states that after the closing statements of the prosecution and the defense, the accused must always be granted the last word. It is the Chair’s responsibility to ensure that this right is expressly provided.
Purpose and function of the Final Word
The Final Word serves several functions in criminal proceedings:
- Expression of the right to be heard: It ensures that the accused can present their perspective immediately before the verdict, without restrictions by third parties.
- Safeguarding procedural justice: This procedural step ensures that the court is aware of all key arguments of the defense before making its decision.
- Psychosocial component: The right to the Final Word allows the accused to express emotions, make admissions, or show remorse.
Process and conduct
Timing and form
According to Section 258 StPO, the Final Word takes place at the end of the main hearing, after the court has closed the taking of evidence and the closing arguments have been presented. The order is strictly established: the prosecution speaks first, followed by the defense or the accused in their role as defender, and finally the accused in person. The exercise of the Final Word is generally oral.
Scope of the Final Word
During the Final Word, the accused may speak without restriction, though within the bounds of decency and courtroom protocol. There is no obligation to make a statement. Interruptions or interjections from the court or other participants are not permitted.
Legal consequences if the right to the Final Word is violated
Absolute grounds for appeal
Failing to grant the accused the Final Word constitutes an absolute ground for appeal. According to Section 338 No. 7 StPO, such a failure always constitutes a violation of a fundamental procedural right and leads to the annulment of the judgment.
Remedy or subsequent granting
The Final Word can still be granted as long as the verdict has not been delivered. After the verdict has been announced, the error cannot be remedied. In such cases, the appellate court is required to overturn the judgment and remand the case for a new decision.
Scope of application and special provisions
Juvenile criminal proceedings
In juvenile criminal law, the right to the Final Word applies in principle in the same manner as in adult criminal law (Section 72 JGG in conjunction with Section 258 StPO). Due to the special need to protect juveniles, the presiding judge must pay particular attention to informing them of the Final Word.
Proceedings in absentia and written procedures
In cases where the main hearing is conducted without the presence of the accused or where proceedings are conducted in writing, the right to the Final Word is regulated differently and may be restricted under certain circumstances.
Disciplinary measures and limitations
The presiding judge can restrict the Final Word if insulting or unlawful content is expressed. There is generally no limitation on speech time; in exceptional cases, however, where there is evident abuse, the Final Word may be cut short.
International comparison
The Final Word is not exclusive to German law but finds equivalents in other countries with comparable criminal procedure systems. For example, Austrian criminal law (Section 244 öStPO) also recognizes a right to the Final Word. The granting of a Final Word is also important under European and international procedural standards in terms of ensuring a fair trial.
Final Word in other areas of law and contexts
Apart from criminal proceedings, the term ‘Final Word’ is occasionally used in other legal contexts, such as in civil arbitration or employment-related hearings. However, there is usually no explicit statutory provision as there is in criminal procedural law.
Summary and significance
The Final Word forms an essential part of criminal proceedings and stands as a symbol for the principle of the right to be heard and for the accused’s participation in the trial. Its neglect results in serious procedural errors. Together with other procedural rights, the Final Word ensures transparency, fairness, and protection of personal rights in criminal proceedings.
Frequently Asked Questions
What is the legal significance of the Final Word in criminal proceedings?
The so-called ‘Final Word’ is of central importance in criminal procedure law and is expressly regulated by Section 258 paragraph 2 of the Code of Criminal Procedure (StPO). It is a statutory right of the accused to make a personal statement after the conclusion of the evidentiary phase and the closing arguments by the prosecution and defense. This right cannot be exercised by a defense lawyer or any other person—it is exclusively reserved for the accused and is intended to give them the opportunity to make final remarks without interruption or questioning, as they deem significant. Disregarding this right can constitute a procedural error that may lead to the annulment of the judgment on appeal. Observance of this right is considered an indispensable element of a fair criminal proceeding and emphasizes the dignity and autonomy of the accused.
What happens if the accused is not granted the Final Word?
If the accused is not expressly and independently granted the right to the Final Word, this generally constitutes an absolute ground for appeal according to Section 338 No. 7 StPO. This means that an appeal based on this can regularly lead to the annulment of the judgment and remand to the trial court, without having to establish whether the judgment was actually influenced by this error (‘reversal of the burden of proof’). The granting of the Final Word must be recorded in the official transcript; otherwise, it is presumed that it was not granted. Only in very rare exceptional cases, for example, if the accused is not present or has expressly waived the Final Word, can the right be omitted.
Does the Final Word actually have to be exercised, or can it be waived?
The accused is not obliged to exercise the Final Word; it is a right, not a duty. The accused can expressly or implicitly (e.g., by remaining silent) waive this right without incurring any adverse procedural consequences. However, such a waiver should be clearly ascertainable to prevent later procedural complaints. In the official record, the court must note that the accused was granted the Final Word and how they responded. Mere silence by the court cannot be interpreted as a waiver; explicit inquiry is mandatory.
What substantive and temporal limits apply to the Final Word?
The Final Word offers the accused a very broad scope of expression, with neither content nor form being subject to strict legal limits. The accused may make statements on the matter itself, their own person, or on procedural proceedings. However, this right is limited by the need to maintain order and procedural economy; insulting or defamatory statements may be prohibited in accordance with Section 177 GVG. The presiding judge may interrupt or end the Final Word if the accused digresses extensively or exceeds reasonable bounds, but must always respect fundamental rights and a fair trial. The length of the Final Word is generally not legally limited.
Is the Final Word recorded in the court transcript?
Yes, according to Section 273 paragraph 1a StPO, it must be expressly noted in the transcript that the accused was granted the Final Word. The actual contents of the accused’s statements are generally not transcribed verbatim unless the accused submits a written statement or expressly requests this. In case of doubt, the accused may demand that the precise wording of their statement be included in the record. If the court does not fulfill this obligation, this can lead to procedural errors.
Does the accused have a right to the Final Word in appellate or review proceedings?
The right to the Final Word generally exists at every instance of fact finding, that is, both at first instance and at the hearing before the appellate court. The Final Word may also be relevant in penalty order proceedings, as long as an oral hearing is held. In review (revision) proceedings, which concern only questions of law and do not involve evidence being taken at the hearing, there is usually no right to the Final Word. An exception applies where evidence is taken in the course of a review hearing—in that case, the Final Word must be granted.
What applies if the accused is absent or unable to participate with regard to the Final Word?
The Final Word presupposes the presence and capacity of the accused to participate in the hearing. If the accused is absent, for example, because they are excluded from proceedings or proceedings are conducted in their absence pursuant to Section 231a StPO, the opportunity for the Final Word is automatically lost. The same applies if the accused is incapable of participating, e.g., due to illness-induced unconsciousness or serious disturbances. Subsequently granting the Final Word is generally not possible; the proceedings must be managed to ensure that the accused has the opportunity to exercise this right whenever practically feasible.
