1. Office of the State Prosecutor, Hamm/Germany
The Principle of Judicial Investigation in German Criminal Procedure Law in Practice
Senior Prosecutor
Anette Milk
Office of the State Prosecutor, Hamm/Germany
Bangkok, 29 March 2011

2. 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

3. Principles in German Procedure
Adversarial
Inquisition
Civil cases
Most labour law cases (employer vs. employee or vice versa)
Some family law cases (alimony)
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)

4. 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)

5. 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!

6. 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

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

8. 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.)

9. 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).

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. 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.

16. 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.

17. Pre-trial Investigations (2)
„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.

18. Pre-trial Investigations (3)
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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.)

25. 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.

26. Main Trial – Taking Evidence
How to take evidence?
Example: sequence of questioning a witness:
Presiding judge
Other professional judges
Lay judges
Prosecutor
Injured party, if any
Defense (attorney and/or defendant)

27. Main Trial – Taking Evidence
Presiding judge (1)
Legal teaching
Introduces the interviewee to the subject („Do you know what this hearing is about?“ – „This hearing is about what happened… date/place“)
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.

28. Main Trial – Taking Evidence
Presiding judge (2)
Asks questions to complete the narrative.
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.

29. Main Trial – Taking Evidence
Presiding judge (3)
6. Introduces other evidence („Officer, please look at these photographs. Did you take them?...“)
Confronts the witness with other statements („The defendant told us a different story. …“)
Continues until he is satisfied.
Gives the floor to other participants. (see next slide)
It is possible to ask additional questions later on.
Makes sure whether to release the witness.

30. Main Trial – Taking Evidence
Questioning 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.

31. Main Trial – Taking Evidence
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.

32. Main Trial – Taking Evidence
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.

33. Background: Legal Remedies
2 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.

34. 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.

35. Motions for Additional Evidence
Informal proposals: The other party should be heard. Informal answer by the court. No high relevance for appeals.

36. Motions for Additional Evidence
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.

37. Example for a Formal Motion
In the criminal procedure against … I, the defence counsel of the accused … request to hear the witness Ms. …. (address…). She will confirm the fact that she was together with my client in Berlin in the time 01 August – 05 August 2009.

38. Example for a Ruling
Ruling 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.

39. Motions for Additional Evidence
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.

40. Motions for Additional Evidence
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.

41. Motions for Additional Evidence
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

42. Sequence of Closing Arguments
1. Prosecutor 2. Injured party or its representative 3. Defense attorney 4. Defendant 5. 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.

43. 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“.

44. Thank you for your attention!