Evidence

Evidence is used to clarify relevant facts when the court takes evidence .

Evidence from a murder case from 1948, kept in an evidence room

General

The establishment of the truth takes place ex officio in criminal procedural law as well as in administrative procedural law, i.e. H. the court independently collects the relevant evidence without the need for a separate application by the parties. It is different in civil procedure law. The so-called disposition maxim prevails here. This means that whoever asserts a fact from which he has an advantage bears the burden of proof.

In doing so, the court makes use of various pieces of evidence with the help of which the evidence is to be provided in a court case . A court can use its own perception (judicial inspection, documents, expert opinions), third-party perception (defendant, witness) or third-party expertise (expert) to determine the facts of the matter . The evidence can be broken down into material evidence and personal evidence .

Procedural law

Evidence is a source of knowledge by which the court is supposed to convince itself of the truth or untruth of an assertion. The individual pieces of evidence are similar in German civil and criminal procedural law. In the strict evidence procedure , only one final list provided by law is provided , which cannot be expanded at will.

Civil procedural law

The parties provide evidence by specifying the evidence ( Section 282 (1) ZPO ). The evidence serves to prove one's own factual assertions and to refute the opposing factual assertions. In strict evidence proceedings under German law and the Austrian Code of Civil Procedure (ZPO), only the following evidence can be considered before a civil court ( motto : " SAPUZ or SPAUZ "):

Expert reports (§ § 402 ff. ZPO) and party reports : The judge should be provided with the necessary specialist knowledge for assessing facts by experts . In contrast to witnesses, experts are replaceable or justifiable. Their importance has increased steadily due to technical, but also medical developments, so that they tend to be involved in a contentious role.
Inspection (§ § 371 ff. ZPO): The court orders the inspection upon application for evidence or at its own discretion (§ § 371 , § 144 ZPO) and may transfer it to the commissioned or requested judge ( § 372, Paragraph 2 ZPO ). The inspection must be recorded ( Section 160 (3) No. 5 ZPO).
Party approval : it only has a subsidiary function ( Section 445 (1), Section 448 ZPO) and is partially linked to the consent of the other party ( Section 447 ZPO). If better evidence is named, it should be left behind ( Section 450 (2) ZPO), since it is considered the least favorable formal evidence.
Documents (§ § 415 ff. ZPO): Documents in the procedural sense are all embodied declarations of thought in writing. This broad interpretation also makes a fax or a printout of an e-mail (each with the sender's details) a process-relevant document.
Witnesses (§ § 373 ff. ZPO): They are by far the most important evidence, even if their statements are not always easy to appreciate by the judge. Parties can only be heard as witnesses if they are not admitted to the party hearing (§ 445 ZPO).

As a means of free evidence, an oath insurance ( Section 294 (1) ZPO) and official information from an authority ( Section 273 (2) No. 2, Section 358a sentence 2 No. 2 ZPO) are available. The official information is only a substitute and not an independent piece of evidence; it can replace the hearing of witnesses or the expert opinion. Even a confession is not evidence, but makes the gathering of evidence superfluous.

Criminal procedural law

In criminal cases come into the trial , only the following evidence for the strict proof under German law are:

Expert reports (§ 72 ff. StPO);
Judicial inspection ( Section 86 of the Code of Criminal Procedure): the judicial inspection must be required to investigate the truth at the discretion of the court ( Section 244 (5) of the Code of Criminal Procedure). A more detailed investigation can often be made possible, especially at the crime scene .
Documentary evidence ( § 249 StPO),
Witnesses (§ § 48 ff. StPO),
Accused ( § 157 StPO): The statements, statements and confessions of the accused on the matter ( § 243 Abs. 5 StPO) are treated as evidence by the prevailing opinion. A credible, plausible confession is usually of considerable importance for the question of guilt, so that the statement of the accused on the matter is an "important source of knowledge of the facts". The confession can even act as the sole basis of the judgment ( Section 260 (1) and (4) StPO).

The Reichsgericht had already emphasized that the accused's confession and other conduct were evidence and thus were accessible to the judicial evaluation of evidence and the formation of convictions (Section 261 of the Code of Criminal Procedure) to be drawn from the main hearing. The confession is in fact evidence in a broader sense.

International

In Austria the ZPO knows 5 pieces of evidence for the taking of evidence: documents (§§ 292 to 319 ZPO), witnesses (§§ 320 to 350 ZPO), experts (§§ 351 to 367 ZPO), inspection (§§ 368 to 370 ZPO) and the hearing of the parties (Sections 371 to 383 ZPO). In principle, all sources of knowledge can be admitted as evidence; depending on their design, these are classified in accordance with the provisions of one of the items of evidence listed. As part of the “free assessment of evidence” (Section 272 of the German Code of Civil Procedure), the judge is not bound by any statutory rules of evidence, but has to judge on the basis of his or her personal conviction whether the evidence was successful or not.

In Switzerland, the Swiss Code of Civil Procedure (ZPO) has a fixed catalog (Numerus clausus) of evidence (Art. 168 Para. 1 ZPO). This includes testimony, certificate, inspection, expert opinion, written information and party questioning as well as evidence. The court decides according to its freely formed conviction (free assessment of evidence) whether the evidence for a legally relevant, disputed fact has been provided or not (Art. 157 ZPO). The numerus clausus does not apply to proceedings relating to child matters in family law matters (Art. 168 Para. 2 ZPO). Here, the Swiss Federal Supreme Court provides for the so-called free evidence or any means of evidence that can be used as evidence.

While in Germany, Austria and Switzerland each party can only use the evidence it has, in the USA the "pre-trial discovery" enables the evidence to be in the possession of the other party or by third parties by means of a "request" can be demanded out.

Others

The Rhetorik different so-called outer evidence , which are given without the use of oratory as laws or records and inner evidence generated by oratory as analogy or Enthymeme . Evidence is part of the rhetorical reasoning .