Viktor Bérces: Evidence in Criminal Proceedings
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Chaper VI. Continental-type evidence systems today
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6.4. The German model
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6.4.7. Specific features of the evidentiary acts at trial

6.4.7. Specific features of the evidentiary acts at trial

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The following principles apply to the taking of evidence:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The principle of the “duty of judicial discovery”: this does not preclude other parties to the proceedings from influencing the direction of the evidence; the main tool is the request for evidence, which must always contain a specific statement of facts or a clearly identified and legally recognised piece of evidence.
  2. The principle of verbality.
  3. The principle of indirectness: as a general rule, evidence must be taken by the court (formal indirectness) and cannot be substituted for evidence (material indirectness). However, the law allows some exceptions to the principle of personal examination by the court by allowing the use of documentary evidence instead of witnesses in certain cases, in order to establish the facts. Accordingly
    • the minutes of the examination of witnesses, experts or accomplices may be read out, with the consent of the prosecutor, the accused and the defence, if the person to be examined is deceased; is in an unknown place; is ill; is disabled; cannot be expected to appear because of distance or for other unavoidable reasons;1
    • in the case of the accused, witnesses and experts, the court may, in such manner and to such extent as it deems necessary, “refresh the memory” of these procedural subjects by reading out their previous statements and drawing their attention to any inconsistencies between their old and new statements.
  4. The principle of the free assessment of evidence by the judiciary: in this context, special mention should be made of the so-called “prohibitions on the assessment of evidence”, which exclude the taking into account of certain results of evidence in the judgment. If the existence of these circumstances can be established in a particular case, it is complete, so that the rule of prohibition cannot be circumvented by obtaining another means of evidence. However, the law provides for few such cases. On this basis, it is not possible to use as evidence
    • evidence obtained through random telephone tapping, the use of technical means or the use of undercover investigators;
    • the content of witness statements where (1) no warning of the rights of the witness has been given, (2) testimony is excluded due to the status of the witness as a relative;
    • the content of incriminating statements for which no warning of the rights of the accused has been given;
    • unauthorisedly obtained or privately made audio recordings or unauthorised telephone conversations; and
    • diary entries.
  5. It is not necessary to prove facts which are common knowledge2; they are facts which are generally known or known before the court.3
  6. The principle of the numerus clausus of admissible evidence: this means that a request for evidence can be rejected if
    • it is contrary to the rules on evidence;
    • the fact stated therein is general or known by the court of its own motion;
    • it is not connected with the fact to be proved or, despite the connection, has no bearing on the assessment of the certainty of the case;4
    • it is directed at an already proven fact;5
    • it is unsuitable;6
    • theevidence to be obtained is not available; 7
    • it is intended to delay the procedure.8
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In Germany, too, a confession can help speed up proceedings: if it is made before the trial and an agreement is reached with the prosecutor, the accused can expect a lower sentence (Absprache). “a survey shows that in such cases the average duration of the trial does not exceed fifty minutes.”9
1 However, records of the testimony of persons who were not previously examined by a judge may be read out only if the witness, expert, co-defendant is deceased or cannot be heard in court within a foreseeable period for other reasons.
2 E.g. historical facts, etc.
3 Which the court has learned about through official channels, in particular from another procedure.
4 On the basis of the dismissal of a motion for a declaration of insignificance, the fact in question can only be assessed against the accused if the court refers to this turn of events before the judgment.
5 In other words, a request for evidence cannot be rejected on the ground that the contrary of the fact to be proved has already been proved.
6 It can be rejected on this ground if the court can justify, independently of the result of the evidence obtained up to that point, why the result alleged in the request for evidence cannot be implied by such evidence according to the general experience of life.
7 In such a case, it is also necessary that the court has previously used all legal means to locate it, but this does not lead to results and there is no reasonable prospect that it can be used as evidence in the foreseeable future (e.g. an evidentiary motion to subpoena a witness who is abroad).
8 To establish this, three conditions must be met: (1) the motion does not establish facts in favour of the accused (2) it would significantly delay the evidentiary procedure (3) the petitioner is aware of all these circumstances (“quasi” bad faith)
9 Farkas (2010) ibid. 30.
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