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Professor Dr. Thomas Weigend
The use of interrogation transcripts and of written declarations in the German criminal
process
Professor Dr. Thomas Weigend
Problem case: Complainant C goes to the police and
accuses D of raping her. Police officer P interrogates C and draws up a protocol of what C said. C signs the protocol.
D is later accused of rape. At D’s trial, C is absent and/or refuses to testify. The court wishes to introduce the police protocol of C’s interrogation as evidence against D.
Professor Dr. Thomas Weigend
Basic rulesThe trial court is to determine the „material
truth“, with parties’ participation rightsMeans of proof: witnesses, experts,
documents, real evidencePrinciple of orality: Court is to base its
judgment exclusively on what has been said at the trial, not on written file
Separation of trial from pretrial investigation conducted by the prosecutor/police
Professor Dr. Thomas Weigend
Special problems of written (documentary) evidence
Documents from pretrial investigation perpetuate the results of pretrial and transport them to trial stage.
Indirect evidence is typically less reliable than “immediate” evidence as to same facts.
As with all indirect evidence, def. cannot well challenge its reliability and truthfulness.
Professor Dr. Thomas Weigend
Principle of (substantive) immediacy”
Preference for testimonial evidence over secondary documentary evidence (as to same facts), especially over “suspect” evidence such as police transcripts of interrogations
Adverse evidence needs to be presented in a way that defendant can challenge it
Professor Dr. Thomas Weigend
§ 250 German Code of Criminal Procedure
“Whenever proof is based on a person’s observation, that person shall be interrogated at the trial. The interrogation shall not be replaced by reading the protocol of an earlier interrogation or a written declaration [of that person].”
Professor Dr. Thomas Weigend
Interests protected
Optimal approximation of the truth through• immediate presentation of evidence to the
factfinder• presentation of best evidence• possibility to discuss evidence at trial
(pointing out contradictions, suggesting additional evidence)
Possibility of def. to confront adverse testimony (right to ask questions at trial)
Professor Dr. Thomas Weigend
Problems of immediacy
Written documents may be more reliable than witness testimony (because they are closer to observation)
Video recording of witness’s earlier testimony may be even more reliable
Witnesses have to be present in courtroom at time of trialIf witness is unavailable, use of documents may be blocked
just “on principle” >> overall loss of relevant informationStrong reliance on witness testimony counteracts trend
toward witness protection
Professor Dr. Thomas Weigend
Statutory exceptions from preference for testimony
• when parties consent• for prior judicial interrogations (transcripts can
be read whenever there is a serious impediment to the witness’s appearance in court)
• for prior nonjudicial interrogations when witness has died or is unavailable for the near future
• for routine expert testimony, e.g., on blood alcohol concentration, police reports on act of investigation other than interrogation
Professor Dr. Thomas Weigend
Reform considerations
• Lesser reliance on witnesses may provide better proofand reduce pressure on witnesses and their privacy.• Confrontation right can (also) be accommodated by
involving the defense in pretrial phase. • New technological means of preservation of testimony
need to be taken into account.• >> No rigid rules but pragmatic search for “best
evidence” under circumstances of individual case• based on consensus if possible (pretrial conference)