The Principle of Judicial Investigation in German Criminal Procedure Law in Practice Senior Prosecutor Anette Milk Office of the State Prosecutor, Hamm/Germany

The Principle of Judicial Investigation in German Criminal Procedure Law

in Practice

Senior ProsecutorAnette Milk

Office of the State Prosecutor, Hamm/Germany

Bangkok, 29 March 2011

Content Overview• Principles in German Procedure • Section 244 par. 2 StPO• Context: Criminal Procedure Law• Types of Evidence• Evidence in general• Statement of the Defendant• Witnesses• Experts• Documents• Objects of Judicial Examination• Pre-Trial Investigations• Concluding Pre-Trial

Investigations

• Indictment• Confirmation Procedure• Main Trial – Preparing the

Hearing• Main Trial – Opening• Main Trial – Taking Evidence• Problems: Background• Inadmissible Evidence• Motions for Additional Evidence• Main Trial – Closing Arguments• Minutes

Principles in German Procedure

Adversarial• Civil cases• Most labour law cases

(employer vs. employee or vice versa)

• Some family law cases (alimony)

Inquisition• Criminal cases• Administrative law cases

(public institution involved, acting in its capacity of public authority)

• Labour law cases concerning the status of the work council

• Some family law cases (in particular: child care)

Section 244 Criminal Procedure C.

[Taking of Evidence]

(1) …

(2) In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.

(3) … (6)

Scope of Inquisition

The principle of judicial inquisition is not only about the elements of crime. It comprises also all facts relevant to the penalty.

Vita of the accused, previous convictions (recidivist?), amount of inflicted damage, attempts to redress, …Important: insanity or diminished responsibility!

Context

• Principle of legality• Investigation stage important and under the

responsibility of prosecutors• Late indictment (compared to common law) • Principle of immediacy• Principle of publicity

Types of Evidence

1. Statement of the defendant.2. Witnesses.3. Experts.4. Documents.5. Objects of judicial inspection.

Evidence in General

• Normally, evidence is taken twice:During investigations and in the main hearing.

• Principle of immediacy:A verdict cannot be based on evidence gathered (only) by pre-trial investigation. Only evidence taken during the main hearing counts. And it should be the most direct evidence.(E.g.: Don´t take a hear-say witness if you can have an eye witness.)

Statement of the Defendant

• Right to be heard.• Principle of „nemo tenetur se ipso accusare“.• The defendant cannot swear an oath. • He is entitled to lie.

(Exception: his statement matches elements of crime – e.g. false accusation – then he will be prosecuted in another procedure).

Witnesses

• Witnesses are interviewed. • Pre-trial stage: a written record is taken to the

file. In simple cases they are allowed to give a written statement.

• Main trial: necessity to show up in person and testify verbally.Exceptions are possible, but very limited.

• Oath for witnesses: possible but rarely used in practice.

Experts (1)

• Used quite often, mainly medical experts (whether the defendant was under the influence of alcohol or narcotics, whether he is mentally ill, how the victim was injured…)

• Pre-trial stage: Expert will be informed about the facts (current state of knowledge) by the prosecutor, and after doing his research, gives a written opinion, which is taken to the file.

Experts (2)

• Main trail: Necessity to show up in person and give his opinion verbally.– Exception: expertise of public authorities (mainly

laboratories: they are treated like documents).

• Oath for experts: possible but rarely used in practice.

• Attention: sometimes the expert can also be a witness! (→ different rules, in particular different legal instruction).

Documents

• Pre-trial: gathered and taken to the file.• Main trial: documents are read.• Attention: sometimes a document can be an

object of judicial examination at the same time! – Document: if the content is important.– OJE: if it is important that it exists, and / or how it

looks like.

Objects of Judicial Examination (1)

• Examples:The forged banknote, the paper with the forged signature, photographs of the crime scene or the wounds of the victim, audiotapes of telephone interceptions, weapons, narcotics, videotapes of riots.

• Pre-trial: things are collected and stored separately from the file. A copy or a report of its inspection is taken to the file.

Objects of Judicial Examination (2)

• Main trial: exhibits are brought to the courtroom and looked at or listened to.

• Very often showed to experts and witnesses during their questioning („Is this your signature? “ - „Officer, did you record this videotape? Please look at the map. What was your position?“)

• Court can leave the courthouse and inspect a crime scene or other relevant places.

Pre-trial Investigations (1)

• Initiated ex officio or upon a motion of an injured party or upon the information by a third person, often by police.

• Normally taking all relevant evidence for a first time and taking records to the file.

• Right of the defendant to be heard and to make proposals for additional evidence.


„The prosecutor is the master of investigations.“Pre-trial investigations are conducted by public prosecutors, who can task the police to perform certain investigations.

„Prosecution is the most objective authority“.Prosecutors have to investigate all circumstances, both inculpatory and exculpatory.A German Prosecutor represents the public. He does not „win“ or „loose“ a case.


• No investigative judge.• If an investigative measure can affect human rights (pre-trial

detention, searches, physical examination…), the prosecutor applies for an order by a pre-trial judge.

• During the pre-trial investigation, the judge acts only upon a motion of the prosecutor or upon a complaint of the defendant against a particular measure of the prosecutor.

• The court can neither initiate nor terminate pre-trial investigations.

Concluding Pre-Trial Investigations• Decision made by public prosecutor.• Dismissing the case

- not enough evidence- in less serious cases: no public interest- conditional dismissal (less serious case and low public interest).- impediments for prosecution (absence of the defendant, status of limitation, immunity ...).

• Filing an indictment to the competent court.

Indictment

• Indictment defines the scope of the main trail.• In this way it limits judicial investigations to the

incident which is described in the indictment.• It does not limit the court to the legal qualification of

the incident.• Indictment cannot be amended.• After its confirmation, the indictment cannot be

withdrawn any more.

Interim Remark: Prosecutors

• Prosecutors have limited choice which cases to prosecute and how to conclude an investigation (principle of legality).

• Prosecutors have exclusive responsibility for the pre-trial investigation („masters“).

• Compared to common law, their role during the main trial is less active, but during investigations, they have high responsibility and give a fundamental contribution for the future main trial.

Confirmation Procedure

• Jurisdiction / competence of the court?• Standard to confirm the indictment:

Probability whether the defendant will be convicted according to the content of the file.= same standard as the prosecutor needs for filing of the indictment; requires assessment of facts and law.

• Defendant has to be heard.• Additional investigations by the court if deemed

necessary.

Main Trial – Preparing the Hearing• Checking which evidence will be needed.

– As suggested by the prosecutor– As suggested by the defense– As deemed necessary by the court

• Additional evidence required?• Skipping suggested evidence? Parties should be heard whether

they share the opinion of the court!• Principle of immediacy!• Scheduling, summoning, and ensuring that material evidence is available

during the hearing.

Main Trial - Opening

• … (some formalities) …• Prosecutor reads out the indictment.• Defendant / defense attorney may give a

statement.• Checking which evidence will be needed is a

continuous process through the whole main hearing. (For example: after an unexpected confession some evidence may be skipped.)

Main Trial – Taking Evidence

• Sequence of taking evidence– Discretion of the court– Often a matter of logic or a practical issue– In practice: not a critical point

• Evidential procedure is – as the main trial in general – public. But witnesses are interviewed in absence of those who have not been questioned yet. Exception: injured party.

• Very often, experts are allowed to stay in the courtroom from the beginning, in order to provide them with a sufficient factual basis for their expertise.


• How to take evidence? Example: sequence of questioning a witness:1. Presiding judge2. Other professional judges3. Lay judges4. Prosecutor 5. Injured party, if any6. Defense (attorney and/or defendant)


• Presiding judge (1)1. Legal teaching2. Introduces the interviewee to the subject

(„Do you know what this hearing is about?“ – „This hearing is about what happened… date/place“)

3. Invites the interviewee to deliver a narrative of the occurrence and ask him to make a clear distinction between his own observations, hear-say and conclusions.


• Presiding judge (2)4. Asks questions to complete the narrative.5. Confronts the witness with contradictions or

gaps compared to previous statement(s). („When you were questioned by the police, you said… now you say… How comes…?“ – „You told the police you smelled alcohol. Do you remember today that you smelled alcohol?“)Or, if there are no contradictions or gaps, he lets the audience know.


• Presiding judge (3)6. Introduces other evidence („Officer, please

look at these photographs. Did you take them?...“)

7.Confronts the witness with other statements („The defendant told us a different story. …“)

8.Continues until he is satisfied. 9.Gives the floor to other participants. (see next slide)

10.It is possible to ask additional questions later on.11.Makes sure whether to release the witness.

Main Trial – Taking EvidenceQuestioning by others.– No repetition of questions that have been answered

already. (→ no new narrative)– Leading questions are not „forbidden“ in general but

should be avoided in the interviewer´s own interest. The outcome does not have much value as evidence!

– Children witnesses have to be questioned through the presiding judge.

– Answers should not be commented during the interview.– Presiding judge has to stop inappropriate, rude or

forbidden questions or comments ex officio or upon a founded objection.


• Practically:Most important role: the presiding judge.No perception that certain evidence belongs to this or another party. Instead it is evidence of the court. „Cross examination“ as a legal term or a concept does not exist.


In practice, the problem is not how to take the evidence in the procedure.

The real pitfall is: Scope of taking evidence?

Too much: is wasting time and money.Not enough: risk of the verdict to be quashed in

the appeal´s stage.

Background: Legal Remedies2 types of appeals.

– Appeal on facts and law. Admissible remedy against judgments of the municipal courts. Evidential procedure is repeated in 2nd instance. Consequence: procedural mistakes during the previous main hearing become irrelevant.

– Appeal only on the application of the law. Admissible remedy against judgments of the municipal courts and district courts (no matter whether 1st or 2nd instance). If the appeal challenges the procedure, a violation of the principle of inquisition can cause the verdict to be quashed.

Inadmissible Evidence

• Problem similar as in common law, but less serious. (Reason: German procedural law is a bit more lenient. No „fruit of the poisonous tree“ – doctrine.)

• If inadmissible evidence is taken during the hearing, but the court decides not to use it ( and this should be mentioned in the written verdict), it does not harm the legality of the judgment.

• But: if inadmissible evidence is used in the judgment to argue against the appellant, an appeal will be successful.

Motions for Additional Evidence

• Informal proposals:The other party should be heard.Informal answer by the court.No high relevance for appeals.


• Formal motions:Should be in writing and read during the main hearing. Strict requirements regarding the content:

- name the fact that shall be proven- name the means of evidence.

Taken to the minutes.The other side has to be heard.Decision by a formal ruling of the court.

Example for a Formal Motion

In the criminal procedure against … I, the defence counsel of the accused …

requestto hear the witness Ms. …. (address…).She will confirm the fact that she was togetherwith my client in Berlin in the time 01 August –05 August 2009.

Example for a RulingRuling

The motion of the defense attorney dated … to hear the witness Ms. …is rejected.

Reasoning:The court has already tried to summon Ms. … with the given address. It

turned out that Ms. … does not live any more in this place. Local authorities have registered her as „left for Australia“ without a new adress. The court has tasked police to find her new place of living by questioning her family. Indeed, family members confirm her emigration to Australia, but nobody knows an address or how to contact her.

Thus, the witness is not available for the court and the motion had to be rejected, section 244 para 3 sentence 2 StPO.


• Reasons to reject a formal motion are strictly limited!

• In particular: the reason of „delay“ • Sections 244 – 246 StPO• Rulings cannot be appealed separately.• Rulings can be challenged together with an

appeal against the verdict.


• Challenging such a ruling requires explicit mentioning in the reasoning for the appeal.

• Highly formalized – many defense attorneys fail to comply with the formal requirements.

• In practice:Up to 200 motions in one hearing – having the hope that out of these at least will be insufficiently reasoned.


Even if there was a consensus during the main trial not to take a specific evidence, an appeal based on the non-taking of this evidence can be successful if:The court has violated its duty to take evidence that was required to clarify an obviously relevant open question.E.g.: psychiatric expertise about a possibly mentally handcapped accused, in order to clarify whether he acted in a state of insanity or diminished resposibility

Sequence of Closing Arguments

1. Prosecutor2. Injured party or its representative3. Defense attorney4. Defendant5. After the presiding judge has announced that the

hearing will be closed now, the defendant has the final say.

Then the panel of judges adjourns for deliberation.

Minutes

• No verbatim minutes (partial exceptions possible).• The minutes record what is done, not how it was

done.• A verdict cannot be challenged for reasons which

would require a „reconstruction“ of the taking of the evidence.

• Example for in inadmissible reasoning: „The verdict quotes the witness wrong. She did not say „blue“, she said „red“.

Thank you for your attention!