witness

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A witness is a natural person who can express his or her own perceptions about a matter to be clarified ("testify"), see §§ 48 ff. StPO. Witnesses are important in the clarification of facts, for example by law enforcement and other authorities and by courts . For the taking of a document , the drawing up of an emergency will or for rituals or ceremonies (e.g. weddings ) it may be necessary or customary for people to be present as witnesses.

Word origin

Etymologically, the legal term witness is derived from the Middle High German form (ge) ziuc "testimony, proof" from the verb draw and is originally to be understood in the sense of "pulling in court", as it is already in Old High German sources with the formula zi urkundin ziohan "To refer to the certificate" is documented in writing. The frequently used noun Augen-zeuge is a direct loan translation ( Latin testis ocularis ), whose basic word testis "witness" is based on the German verb testieren " bezeugen ".

Categorization

Depending on the type of testimony and the role of the witness, his testimony should be given more weight than other witnesses when making a decision:

  • Official witness is a person who has witnessed an incident while exercising his office and who can testify as a witness;
  • Detection witness is the witness who can recognize a perpetrator;
  • Eyewitness ( contemporary witness ) is the person who has experienced a process, has perceived it visually;
  • Ear witness (contemporary witness) is someone who has heard but not seen something;
  • Hearsay witnesses are those who report what someone else said to them based on their perception.
  • Alibize witness is a witness who can confirm that the suspect was in a location other than the crime scene during the time of the crime.
  • A witness is a person who was able to follow the course of events or parts of it or was present at the time in question. Often such witnesses are not only uninvolved persons, but also victims or suspects themselves.

A special case of ear witnesses are blast witnesses who z. B. have not observed a (traffic) accident, but only turned around at the moment when it "popped".

Professional witnesses are people who can provide information about an act or a perpetrator while performing their duties.

quality

If a direct witness cannot be heard for factual or legal reasons, it is possible to use hearsay witnesses instead , whose hearing may even be required according to Section 244 (2) of the Code of Criminal Procedure . Since indirect information with several links there is a higher risk of distorting events or reproducing them incompletely, higher demands must be placed on the evaluation of evidence.

Fire witnesses often claim in retrospect that they saw the accident. As a rule, your testimony is not only worthless, but can even hinder the judging court in establishing the truth.

A research group at the University of New South Wales in Sydney , Australia, reported in August 2004 on the surprising discovery that at the time of the events to be investigated, disgruntled eyewitnesses provide more precise statements than those who were in a good mood. The social psychologist Prof. Joseph P. Forgas , head of the study , attributed this to the hypothesis that “mood states are evolutionary signals for how to deal with threatening situations.” A mood that has slipped into the negative because of the threat of the event favors one systematic, attentive information processing.

Legal situation in Germany

The hearing of witnesses is the most common strict evidence . The witness describes his own sensory perceptions to the court , no legal opinions, conclusions or empirical knowledge. Errors in the questioning technique of the interrogator, deficiencies in the perception and storage of what has been experienced by the witness, but also possible lies of a witness must be taken into account when assessing the witness testimony. Anyone who cannot be heard as a party or as a defendant can be a witness. A minor can also be a witness, provided he has the necessary intellectual maturity.

Areas of law

The central norms about the witness evidence according to the respective procedural law:

Sometimes in establishing a will act as a precaution consulted witnesses who the certificate with sign (eg. Groomsmen ) - Here is spoken of witnesses, although this ultimately did not testify about the document, but only the process confirmed as such.

Examination of witnesses

The court has to form its own conviction about the testimony. The mere introduction and reading of a transcript of an interrogation by the police, public prosecutor or any other authority is generally not sufficient. The trial court should form its own opinion about the credibility of the witness and ask questions it deems necessary to investigate the facts. Only the personal and factual independence of the judge and, if necessary, the publicity of the judicial hearing of witnesses ensure that the evidence is exhausted. In special cases, the judging court in civil proceedings can assign the hearing of witnesses to a member of the court or to another court. In civil proceedings, the hearing of a witness is dependent on the request of one of the parties.

In Germany, in relation to the judicial proceedings ( main hearing , oral hearing ), the witness is questioned by the judge or the public prosecutor or the defendant's defense counsel. The parties or their legal representatives can ask questions. An exception applies to cross-examination .

Knowledge of the principles of perception psychology is essential for the critical assessment of the content of a witness testimony, such as statements that are driven by eagerness to deal with stress . If there are any indications of a psychiatric illness in a witness, a credibility report can be requested in the main proceedings . This is created by experts. Any party involved in the process can be the applicant.

A study from 1996, in which the test subjects were accused of having made data acquisition impossible through their behavior in the experiment, showed a strong effect of testimony on the internalization of guilt and the generation of false confessions in the accused. This indicates that presenting falsely accusing evidence can lead people to believe that they are guilty even though they are innocent.

Witnesses do not have the right to ask questions on the stand . The " right to speak " is only granted to them by the court. If a witness is also a joint plaintiff , he has the right to ask questions in this capacity.

A distinction must be made between the unofficial questioning and the questioning under oath .

The statements of the witnesses are to be included in the minutes of the hearing ( Section 159 , Section 160 (3) No. 4 ZPO). Under certain conditions, the logging can be replaced by a reporter's note.

Rights and obligations

In the case of a court summons, the witness has the duty to appear in court, to report truthfully and completely about the facts and conditions he has perceived and, if necessary, to swear or affirm his testimony. The witness may submit records, evidence in the form of photos that he can testify, tape recordings that support his testimony and drawings, including drawings that he has made himself to clarify a situation and use it for explanation. Accordingly, there is an obligation to appear before a parliamentary committee of inquiry.

The witness has to obey a public prosecutor's summons and testify on the matter according to § 161a Abs. 1 StPO. The public prosecutor's office can allow no personal information to be given ( Section 68 (3) StPO). A witness should also be allowed to give his place of business or work or another address for summons instead of his place of residence ( Section 68 (2) StPO). This only applies if there is a reasonable cause for concern that stating the place of residence of the witness or another person will endanger the legal interests of the witness or another person or that witnesses or another person will be influenced in an unfair manner.

This obligation to appear and to give evidence also applies to a summons by the investigating police if the summons is based on an order from the public prosecutor's office ( Section 163 (3) StPO). This obligation to give evidence or information to the police can also affect credit institutions.

If the witness does not comply with a summons, remedies such as fine , demonstration or custody may come into question.

An evidentiary privilege (right to remain silent) exists only if the witness can establish a party, or - with the defendant - in criminal proceedings related , by marriage or engaged to be ( § 52 et seq Code of Criminal Procedure). For persons with professional secrecy (e.g. doctor, pastor, defense attorney) there is a right to refuse to testify under Section 53 of the Code of Criminal Procedure, but only under the conditions specified there. If the witness is not made aware of the right to refuse to testify during the interrogation, this may result in a ban on the use of evidence with regard to the evidence obtained, unless the witness was already demonstrably otherwise aware of his rights in this regard.

A witness does not need to answer questions if, given truthful information, he would have to admit a criminal offense of his own ( Section 55 StPO). In this respect, he has the right to refuse to provide information . Deliberate false testimony is always punishable if the testimony was made in court or before a parliamentary committee of inquiry. With regard to the amount of the penalty, the criminal liability only depends on whether it was taken under oath (see perjury ) or under oath . In the case of the oath, negligent false decisions are also punishable.

Furthermore, the witness may be questioning a lawyer to witness assistance Consult ( § 68b Code of Criminal Procedure). In addition, his costs and expenses (travel expenses, loss of earnings, etc.) are to be reimbursed. The Judicial Remuneration and Compensation Act (JVEG) regulates further details . Witness protection can be granted under certain circumstances (danger to the witness, etc.) .

The obligations of a witness also include the tolerance of physical examination measures ( Section 81c StPO).

Differentiation from the expert

The expert provides the court with specialist knowledge on the basis of knowledge that the professional judges as lawyers and the honorary judges do not have. An expert is often interchangeable because several experts regularly dispose of his abstract expertise, while a witness can usually not be replaced because only he can describe a concrete perception, namely his perception. Furthermore, an expert must be appointed by the court.

If an expert appearing in court reports about observations that he was only able to make on the basis of his special expertise (e.g. DNA examinations), he will be heard as an expert witness (civil procedure: § 414 ZPO). The meeting of special expertise and concrete perception is usually purely coincidental.

The same evidence person can be a witness and an expert. What it is to be regarded as in relation to the individual content of the statement depends in particular on the quality of the statement. The distinction is not only important for the amount of compensation in accordance with the Judicial Remuneration and Compensation Act (JVEG), but above all because of the right to reject the expert in Section 406 of the ZPO.

Police witness finding

In the case of witnesses during a police operation , e.g. B. in the case of a security attack after a punishable act, first informational surveys are carried out. Witnesses are to be instructed about their rights and obligations as soon as possible, but at the latest before the first hearing ( Section 57 of the Code of Criminal Procedure).

Witness collection points are set up in major police locations . They serve to bring all (potential) witnesses to one place in order to create order in the incident on site. This also improves the efficiency of information gathering and is beneficial to the workflow.

See also

Web links

Wiktionary: Witness  - explanations of meanings, word origins, synonyms, translations

literature

  • P. Weimar, R. Puza, K. Nehlsen-von Sryk, J. Röhrkasten, A. Padoa-Schioppa, H. Ehrhardt: witness . In: Lexicon of the Middle Ages (LexMA). Volume 9, LexMA-Verlag, Munich 1998, ISBN 3-89659-909-7 , Sp. 582-588.
  • A. Rösinger, G. Signori (Ed.): The figure of the eyewitness. History and truth in a cross-disciplinary and cross-epoch comparison. UVK, Konstanz 2014, ISBN 978-3-86764-515-7 .

Individual evidence

  1. ^ Friedrich Kluge, Etymological Dictionary of the German Language , 25th edition, 2013, p. 1008
  2. ^ Principles of witness evidence Strafakte.de
  3. ↑ Witness statements problematic, but indispensable. In: M. Rant (Ed.): Expert in Austria. Festschrift. 2012, ISBN 978-3-7073-2188-3 , pp. 445 ff. (PDF; 255 kB)
  4. ↑ OLG Munich judgment of July 4, 2012, Az. 3 U 470/12 margin no. 48 ff.
  5. ^ Saul M. Kassin: The Social Psychology of False Confessions . In: Social Issues and Policy Review . tape 9 , no. 1 , January 1, 2015, ISSN  1751-2409 , p. 25-51 , doi : 10.1111 / sipr.12009 ( wiley.com [accessed June 12, 2017]).