confession

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A confession is generally spoken of when someone admits a certain fact that they are accused of. In procedural law , in particular, a confession is considered to be when a party declares that factual assertions by the opponent are true that are unfavorable for the party.

General

Various types of evidence are permitted in procedural law . There is factual evidence ( documents , traces , evidence of crime , loot and inspection ) and personal evidence ( witnesses and experts ). Admittedly, confessions are not formally intended as evidence, but are considered personal evidence. Only one of the evidence in a broader sense, as in the main hearing the evidence only after the interrogation of the accused takes place ( § 244 para. 1 StPO).

history

In the inquisition process under Roman law, the confession was considered the “confessio est regina probationum”, i.e. the “queen of evidence”. This overestimation of the confession, however, led inquisition trials to the fact that they wanted to get a confession in every case. If there was a confession, it could not be weighed against other (including exculpatory) evidence. It should come as no surprise that in this central position of the confession, torture was used to enforce a confession. The fourth Lateran Council from 1215 produced the modern form of the religious confession. Torture for obtaining confessions was not abolished until 1776. Abraham Saur took the opposite view that a confession was not evidence. In some cases, German law has deviated considerably from the idea of ​​being the best evidence.

species

There are different types of confessions depending on the content and scope of a confession. If a party itself presents the unfavorable facts before the opposing party has asserted them, one speaks of an anticipated (anticipated) confession . The anticipated confession only becomes a confession when the opponent picks it up. The full confession is characterized by a full assumption of responsibility for all the alleged elements of action. A confession that does not completely cover all elements of the action and thus the allegation is referred to as a partial confession . The qualified confession is characterized by a complete, detailed and clear description of all facts relevant to the subsumption. In the case of a qualified confession, an objection is raised that is not part of the norm on which the claim is based; it is provided with restrictions or additions. Under slim confession a confession is understood since 1988, in which only the result of the investigation is confirmed at the trial. It plays an important role , especially in communication in criminal proceedings . The agreed confession is made at a time when the court is not yet convinced of the defendant's guilt. With this, the taking of evidence with regard to the allegation is shortened or even omitted. An excessive confession ("overcharging confession") brings about circumstances aggravating the punishment and proves criminal offenses that were not identified without the explanation. The coerced confession ( "forced confession") has been procured by the coercion, torture or enhanced interrogation techniques. False confessions can be made due to police questioning pressure, avoidance of pre-trial detention or psychological factors. A voluntarily false confession is spoken of when people report to the police on their own initiative to cover up the perpetrator or because of a pathological pursuit of fame or self-punishment. In the case of a forced false confession ("coerced-compliant"), a false confession is knowingly made in order to escape a threatened evil or to obtain suspected favors. In the case of an internalized false confession (“coerced internalized”), the accused themselves are convinced, as a result of a suggestion made by the interrogator, that they have committed a criminal offense, although this is not the case.

In addition to the scope, confessions can also be differentiated based on the relevance of evidence, the truthfulness and the form of communication. As personal, the confession can come from a suspect , accused , accused, or accused .

Civil litigation

In civil proceedings, a confession is the admission of the correctness of a factual assertion by the opposing party. According to § 288 ZPO only facts can be recognized as a confession. A mere failure to dispute opposing claims is not a confession. Because of the far-reaching consequences of a confession, it can be assumed in case of doubt that a party does not admit, but rather does not want to deny, the unfavorable facts presented by the opponent and which it does not expressly deny. The confession can be combined with additions or restrictions ( qualified confession ; Section 289 (2) ZPO). A confession can be presented for the first time in the application ( anticipated confession ), but must be presented at the hearing at the latest. It is sufficient if it is included in the written statement and becomes the subject of the oral hearing through reference in accordance with Section 137 (3) ZPO (record note). It does not need to be explicitly explained, but can also result from the interpretation of the process presentation.

There are certain legal effects associated with a confession. In civil proceedings, a confession makes taking evidence superfluous. The admitted fact does not need any proof and is to be taken as true by the court in the judgment. It also has binding effects for the declaring party in the appellate authority ( Section 535 ZPO). Confessions are only effective against the person who made them ("confessio alterius alii non praejudicat"; § 61 ZPO). A confession from criminal proceedings does not develop the effects of Sections 288, 290 ZPO in civil proceedings, but is an important indicator of the truth of the admitted facts within the framework of the free assessment of evidence according to Section 286 ZPO . A written confession is the exception under civil procedure law ( Section 128 (2), Section 251a , Section 331a ZPO).

Criminal trial

Here, a confession is the accused's admission of the charge. The main importance of a confession lies in the fact that an accused makes statements of facts that only he is aware of. It is incumbent on the court to “investigate the truth ex officio ” (Section 244 (2 ) StPO ). The court is not bound by the confession because of the free assessment of evidence ( § 261 StPO). According to the prevailing opinion, it is evidence that is subject to the free judicial assessment of evidence according to § 261 StPO. In this regard, the Reichsgericht (RG) has already emphasized that the confession and other conduct of the accused are facts of evidence and are therefore 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.

In criminal proceedings , the police are entitled to work towards a confession; the limits to this can be found in Section 343 of the Criminal Code ( extortion of testimony ). A confession given to the police before the main hearing, for example, can only be introduced into the proceedings if a judge is suspicious of it ( Section 254 (1) StPO). Evidence is then the statement made by the accused on the judicial reproach . The confession is a procedural act , so that the person making the statement must be able to postulate . A confession made by the defendant during the main hearing is only one of many possible sources for researching the true facts. On the other hand, it is not impossible to convict a defendant solely on the basis of his confession. According to Section 257c, Paragraph 2, Clause 2 of the Code of Criminal Procedure, the confession is not a mandatory requirement for the assurance of a lower and upper penalty limit in the context of an agreement. According to Section 136a, Paragraph 3, Clause 2 of the Code of Criminal Procedure, there is a prohibition of exploitation for confessions obtained through violation of the rules for collecting evidence such as deception , threats , coercion, abuse , fatigue or through artificially influencing the formation of free will. The promise of benefits that are not provided for by law is also prohibited. Furthermore, failure to comply with the statutory instruction ( Section 136 (1) of the Code of Criminal Procedure) can lead to the prohibition of the exploitation of confessions if, for example, the accused has not been advised of his right to remain silent .

The questioning of the accused (admission, confession) is not evidence in the narrower sense, but a statement can be considered evidence. Although the confession is not explicitly mentioned as a criterion for determining the sentence in Section 46 of the Criminal Code, it plays a major role in practice. In the highest court rulings, the mitigating effect of a (tactical) confession is generally recognized.

revocation

The confessing party is generally bound by a confession. It is controversial in civil proceedings whether a deliberately untrue confession can be revoked at any time because of the importance of the obligation to truth, contrary to Section 290 ZPO. In any case, the BGH rejects a revocation. A revocation only applies if the party proves that the confession made is objectively false and based on an error (Section 290 ZPO). Under criminal procedural law, revocation does not remove the confession and, in the event of a revocation, the courts have to deal in detail with how the earlier confession was made. Apart from the prohibition of exploitation, the earlier - possibly rash - statements of the accused must be included in the judicial assessment of evidence. The later revocation is checked for plausibility.

False confessions

Contrary to the assumption that people would only make a confession if they were truly guilty, false confessions are surprisingly common . Studies show that 25% of the confessions subsequently checked by DNA tests turned out to be false and 10% - 20% of those who had already been interrogated stated that they had already made a false confession.

A distinction is made between voluntary false confessions (for example, to protect the actual perpetrator, to cover up another criminal offense or out of the pursuit of fame) and false confessions that come about in the course of the interrogation (for example, through the characteristics of the respondents or the interrogation methods of the police ).

Adolescence appears to be a risk factor for making a false confession. Young people are more susceptible to external influences, tend to behave impulsively and are not able to assess the consequences of behavior very well. The IQ also influences the propensity to make false confessions. People with a lower IQ are more influenced by situational circumstances, are more likely to give in to interview pressure and are poor in assessing long-term consequences.

Police interrogation methods can also influence confessions. Some questioning methods, such as the Reid method used in America , aim to make it appear attractive to the accused to confess. It is claimed, for example, that the evidence is clear / overwhelming, that he would be convicted anyway and that a confession can only have positive effects. There are also minimization techniques (downplaying the fact), deals offered and the presentation of false evidence . Overall, while these methods encourage true confessions, they also increase the likelihood of false confessions. The length of the interrogation can also become a risk factor for a false confession due to an impairment of the cognitive capacity and the self-regulatory abilities of the accused. Overall, however, the combination of several factors always leads to a false confession.

It is often wrongly assumed that the police, judges and other authorities can distinguish between true and false confessions. This is not the case. Studies show that the hit rate in recognizing false confessions with police officers is only around 50%, which corresponds to coincidence. In addition, police officers are more likely to make false positive decisions, i.e. to consider a false confession to be true. They are very sure of their decisions.

False confessions can have devastating consequences in practice. Once a confession is made, it stays in people's minds and influences later decisions, even if withdrawn. False confessions can also influence the further investigation or lead to a different evaluation of evidence.

False confessions in criminal proceedings

The issue of false confessions has received a lot of international attention, as many isolated cases have emerged in which people have been convicted on the basis of false confessions. This is particularly problematic as studies suggest that confessions have a greater impact on court decisions than, for example, eyewitness accounts.

The risk factors of false confessions can be personal or interrogation-related.

The interrogation-related risk factors include the police's interrogation techniques, which are divided into confession-oriented and information-gathering approaches. The confession-oriented approaches play a larger role in relation to false confessions. One component of these approaches is the minimization technique. The interrogator wants to show the suspect by signaling understanding for the offense, offering excuses and justifications for the offense, that a confession can improve their own situation, that negative consequences for the self-image can be alleviated and that the result could be a reduction in punishment .

A 1996 study by Kassin and Kiechel confirmed the assumption that the minimization technique increases the likelihood of confessions, but also of false confessions. Another study by Kassin and McNall found the reason for this: According to this, individuals would interpret forbearance in condemnation in the sentences of interrogators who use the minimization technique.

Another interrogation technique of confession-oriented approaches is the maximization technique, which is the counterpart to the minimization technique. A direct assignment of guilt takes place or a general emphasis on the severity of the crime and its consequences in order to convey to the accused that a confession is the only exit from the interrogation.

Minimization and maximization techniques are used, among other things, within the Reid method . In general, these practices target actual perpetrators and become problematic when people found guilty are motivated to confess.

In Germany, therefore, the legal framework generally suggests an information-gathering interrogation approach, but this can only be pursued if the accused are willing to testify. However, since motivation to give evidence is often a task of police interrogation, a confession-oriented interrogation approach is used in these cases. This is also often the reason for using the minimization technique, despite the risk of increasing the rate of false confessions.

False confessions based on false memories

However, false confessions are not always based on willful "false statements" - whether these are voluntary or "forced" through certain interrogation methods. Rather, in certain cases, confessions can actually be based on false memories - the memory of an experience that a person himself believed to be correct, but which never happened.

In such a case, a person would falsely plead guilty to a crime which, contrary to the above-described voluntary or interrogation-based confessions, he himself actually believes he has committed. This belief is based on authentically experienced memories of the alleged act - memories which, however, are in fact confabulated memory contents that (do not have to) relate to real experiences of the person.

A study by Shaw & Porter from 2015 suggests that such pseudo-memories can be evoked in the context of very suggestive interrogation methods and thus become a problem for the credibility and validity of confessions "gained" in the context of such interrogation techniques:

The psychologists showed that in a controlled, experimental setting it is possible to elicit vivid memories from young adults of crimes committed in their early adolescence, which they actually did not commit.

Under the guise of an investigation into emotional events in childhood, students were invited to three, approx. 40 minute long conversations, in which they, according to the pretext, were supposed to report on such experiences.

What the test subjects did not know, however, was that, in addition to a real, strong emotional event from their childhood, they were also asked about another, false occurrence that was in no way related to their actual life.

The untrue occurrence was randomly assigned to the ignorant subjects from a list of six events - three of which contained a strong emotional experience, three a criminal offense. So should the students in their childhood between the ages of 11-14 years either

  • have seriously injured
  • have been attacked by a dog
  • have lost a large sum of money
  • have stolen something
  • have caused bodily harm to someone or
  • attacked someone with a gun.

After the three interviews, which took place at weekly intervals, in which the students were asked about the alleged offenses (and the false emotional experiences) using suggestive conversation techniques, 70% of the subjects were convinced that they had committed the crime they were "assigned".

Her reported, false (!) Memories of this never-happening event were comparable in terms of richness, liveliness and detail with the reports of her true memories. Some of the testants even described details such as the appearance of the police officers they came into contact with as a result of their (alleged) crime.

Even with regard to their sensory “reliving” of the past, the test subjects recorded a similarly pronounced complexity of sensory impressions in the case of true and false, criminal memories.

Due to the fact that memory-based evidence plays a major role in legal systems around the world and in view of the far-reaching implications that a false confession in the form of a subsequent (false) conviction with, for example, imprisonment, studies like that by Shaw & Porter raise awareness of the problems associated with human memory in this context - especially with regard to the influence of certain questioning / interrogation techniques on the creation of false memories.

International

In Austria, a confession is regarded as a reason to mitigate the sentence according to Section 34 (1) No. 17 ÖStGB: "It is a reason to mitigate in particular if the perpetrator has made a remorseful confession or has contributed significantly to the establishment of the truth through his testimony." 48d StGB (CH) stipulates that the court mitigates the sentence "if the perpetrator expresses sincere repentance, namely compensated for the damage insofar as it was reasonable to expect him."

In American criminal proceedings, too, with a confession or simply not denying it, a taking of evidence is superfluous and the admitted fact is classified as proven. The "guilty plea" (confession) opens the way to a simplified procedure in the US criminal case. In Germany, on the other hand, the confession is only an indication of the accused's perpetration. In Japan it is expressly forbidden by the constitution to base a conviction on the confession of the accused alone. Under English law, the police are prohibited from working towards a confession. Even seemingly innocuous phrases such as "you might be better off telling the truth than lying" are not allowed.

literature

  • Jo Reichertz, Manfred Schneider: Social history of the confession: To the change of the confession culture , Verl. Für Sozialwiss., Wiesbaden, 2007, ISBN 3531149326 .
  • Renate Volbert: False Confessions - About the possible effects of presetting, interrogation and understanding
  • Russano M., Meissner C., Narchet F., Kassin S. Investigating True and False Confessions Within a Novel Experimental Paradigm. 2005.

Web links

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

Individual evidence

  1. so also BGHSt 2, 269, 270 = NJW 1952, 673
  2. ^ Rudolf Hoke, Austrian and German Legal History , 1996, p. 123
  3. Frauke Drews, The Queen Among the Evidence? , 2013, p. 32.
  4. Peter Brooks, Troubling Confessions , 2001, p. 93.
  5. ^ Rudolf Hoke, Austrian and German Legal History , 1996, p. 433.
  6. confessio non est probatio ; Abraham Saur, Peinlicher Prozessz , 1580, p. 38.
  7. ^ BGH NJW 1978, 885
  8. a b Frauke Drews, The Queen Among the Evidence? , 2013, p. 23 f.
  9. Ellen Schlüchter, On the relativization of the judicial duty to provide information through mutual understanding in criminal proceedings , in: Manfred Seebode (Ed.), Festschrift for Günter Spendel on his 70th birthday, 1992, pp. 737, 748.
  10. Renate Volbert: Handbuch der Rechtsspsychologie , Hogrefe Verlag, p. 254.
  11. ^ Norbert Pantle / Stephan Kreissl, Die Praxis des Zivilprozesses , 2007, p. 77.
  12. Walter Zeiss / Klaus Schreiber, Civil Procedure Law , 2003, p. 163 ff.
  13. BGH NJW 2001, 2550.
  14. ^ BGH, judgment of March 15, 2004, Az .: II ZR 136/02
  15. cf. No. 111 para. 4, No. 222 para. 2 RiStBV
  16. RG (1883), 784, 785; RGSt 48, 247, 248 f.
  17. BGH WM 1992, 1463
  18. BGHSt 43, 195, 209
  19. BGHZ 37, 154
  20. ^ BGH, judgment of July 22, 2009, Az .: 5 StR 238/09.
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  37. Claus Roxin, Introduction to Criminal Law and Criminal Procedure Law , 2006, p. 108.
  38. Kenny's Outlines of Criminal Law , 1929, p. 400 ff.