Credibility (law)

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The credibility of a witness plays a role in judging evidence . Their assessment is one of the judge's core tasks , taking into account the findings of interrogation psychology . Credibility results from the following characteristics:

As a rule, it is up to the judge to assess credibility. In exceptional cases, however, the judge may be obliged to obtain a credibility report.

Differentiation between credibility and credibility

Credibility relates to a person and is therefore a personality trait. Credibility, on the other hand, relates to a statement ; it is a statement.

According to the more recent view of statement psychology , what matters is the credibility of a statement and not so much the credibility of a person. Even people who are generally considered to be untrustworthy, such as fraudsters , can make credible statements, while personalities with impeccable repute such as judges or pastors can lie - and even more wrong - in individual cases .

However, credibility as a personal characteristic is significant when gangs , clusters or particularly connected stakeholders are involved and witness collusion is to be feared.

The credibility in the broader sense is the result of the assessment of whether the statements relating to a specific event are correct. Four potential sources of error must be taken into account: the perception of the facts, the storage taking into account the respective state of consciousness, the reproduction quality (meaningfulness) and the truthfulness of the statement itself (credibility in the narrower sense).

The credibility in the narrower sense is usually determined by the judge; To do this, he uses an expert and proceeds as follows: It is initially assumed that the statement is untrue (null hypothesis). This hypothesis is tested using the following positive indicators:

  • concrete, descriptive description
  • Richness of detail and admitting memory gaps
  • Description of broken chains of action and of what is not understood
  • Self-corrections and stresses
  • originality
  • Inner coherence ( logical consistency)
  • Typical details.

A conscious lie is constructed from stored general knowledge . The lying signals result from the reverse of the reality criteria:

Credibility doctrine

The modern doctrine of credibility was essentially developed by Rolf Bender and Armin Nack , based on Arntzen's research on interrogation psychology . It is based on behavior analysis, but especially on statement analysis.

Behavior analysis

The body language is observed on ten warning symptoms and signs four truth out their significance, while not free from doubt, deserve the careful attention nonetheless.

The warning symptoms are: sweating , color change in the face , dry mouth , increased pulse , shortness of breath , avoidance of eye contact , change in the pitch of the voice , nervous or mischievous smile, rigidity and telltale gestures such as frequent self- contact with the hand on the face, increased lateral body movements in the chair Hand twitching, hand wringing, hand rubbing, hand plucking, finger drumming, cramped hands and bowing of the head.

The following are given as signs of truth: Consistently natural body language in the transition between harmless topics and the questions relevant to the decision, emotional reverberation of the experience, involuntary head movements ( nodding , head shaking ) by the person who believes they are not being observed because they were not heard at the time and, finally, body language hurrying ahead when moving anticipate what has not yet been translated into spoken language.

The assumption that the technical aid of a polygraph test ( lie detector ) can record and evaluate physical reactions during an interview in such a way that the truthfulness of answers can be measured has proven to be too technologically faithful. A polygraph test is therefore not admissible evidence in Germany.

Content and structure of the statement

The test procedure that has come to the fore today in the field of statement psychology is statement analysis based on the content and structure of the statement. Bender / Nack have developed a catalog of criteria which, on the one hand, systematizes the reality criteria of a statement and, on the other hand, compiles what are known as lying signals. In the meantime, however, there has been a move to refer to the latter as warning signals .

Reality criteria

Reality criteria in terms of content

Criterion of detail : details that flow into the description as spontaneously as possible make the event colorful and palpable and not only support the central evidence issue.

Individuality criterion : The statement is unmistakably shaped by the personality and style of language of the respondent. In the context of these central content-related criteria, diverse characteristics still play a role. The following are to be mentioned:

  • Interdependent feature: Communication of the content of mutual conversations that do not constitute the subject of evidence
  • Complication feature: Description of complications and obstacles to achieving goals and overcoming them
  • Offense typical feature: Description of typical behavior in connection with legally relevant behavior without knowing the legal relevance
  • Originality feature: Confirmed incidents, expressions or parts of the conversation are downright unique
  • Emotional characteristic: description of accompanying feelings, ideas and associations
  • Failure to understand: The witness describes observations that he himself cannot put into context because he did not understand them
  • Ambiguity feature: description of misunderstandings or ambiguities.

It is important for all of the mentioned characteristics of reality that they can also be found in statements in which an experience once had is only changed with regard to time, place or people involved (intentional relocation). In order to rule out this possibility, a test criterion called an interlinking criterion is available, which is always fulfilled when the overall statement shows a variety of interrelationships in terms of time, location and personnel.

Structural criteria

Structural equality criterion with equilibrium feature and tempo feature: The structure of the statement remains the same, in terms of content (richness of detail, individuality, interdependence), in terms of language (flow of language, sentence structure , expression ), under situational aspects (body language, emotional accompaniment), equilibrium feature : With the for For the same party favorable and unfavorable parts of the statement, an equally good memory, the same level of detail in the description and the same emotional involvement are revealed. Speed ​​feature : colored details flow spontaneously and informally into the report, further details are promptly added during the interrogation.

Non- control criterion with reversal feature and logical support feature; Non-control criterion : Impulsive and associative, not very chronological or ordered according to other criteria, not consciously aimed at a certain conviction of the interrogator. Reversal feature : statement that is not chronologically ordered, but rather the other way around, repeatedly rolled up from backwards. Logical support feature : The person providing the information describes an occurrence that is initially inexplicable to both himself and the interrogator, which is subsequently explained on the basis of other information after the statement has been completed.

Homogeneity criterion with the mutual confirmation criterion and the non-contradiction criterion. Criterion of homogeneity : The various details of a statement combine to form a coherent, unified whole, in spite of different connecting points, especially if the statement is uncontrolled or even erratic. Mutual confirmation feature : Different parts of the statement - especially parts that are distant from each other - mutually confirm each other. Non-contradiction feature : The witness does not get involved in contradictions, although his testimony is extensive and the interrogation thorough, especially if the testimony is uncontrolled or erratic.

Repetition criteria

Repetition criteria are the constancy criterion and the extension criterion with the gap filling feature and the mutual supplementary feature. They come into consideration when a witness is heard on different occasions about a particular experience. Constancy criterion : The core of the action experienced by the witness as central is reproduced essentially the same in terms of content, while the details that are not essential for him are subject to changes. Extension criterion : the witness is willing and able to considerably expand his previous report. Gap filling feature : When the statement is repeated, new details spontaneously flow in, which fit organically into what has been said so far. Mutual supplementary feature : Different witnesses give different details.

Lying signals

The false statement is characterized by the lack of the reality criteria just mentioned and by the fact that it has at least some features from the three groups of lying signals: the embarrassed signals, the exaggeration signals and the signals of lack of competence.

Signals of embarrassment are the reluctance signal with the denial symptom, the impoverishment symptom and the flight symptom, the Freudian signal with the slip of the tongue symptom, the non-non-symptom and the indistinct symptom and finally the submissive signal .

  • Signal of restraint : The witness claims to have made perceptions on the points that are not essential to him and claims to remember them today, but does not want to have any perceptions on the points that were central to him at the time or does not remember them today.
  • Refusal symptom : The witness refuses to expand the content of the testimony made during the interrogation or, if necessary, can be forced to add meaningless additions.
  • Impoverishment symptom : unbelievable reports, which are generally poor, are restricted even further (without replacement) to allegations of impossibilities, contradictions, incompatibility with established facts, etc., ie "impoverished".
  • Escape symptom : The witness tries to move away from the central evidence subject to any trivialities, bites into inaccuracies or insignificant errors on the part of the other side.
  • Freud's signal : the choice of words contradicts the content of the statement,
  • Speech symptom : Certain idioms and forms of speech that are typical of the (half) lie.
  • Non-non-Symptom : The statement is just by far more likely that you always where the word does not occur, this simple strokes, and always where the word does not seem to be missing, this adds
  • Symptom of ambiguity : Indefinite, even ambiguous language that leaves the facts as a whole unclear.
  • Signal of submission : A witness flatters the judge or expresses his need for help.

Exaggeration signals are the certainty signal with the accuracy symptom and the stereotype symptom, the audacity signal with the advance defense symptom and the indignation symptom and finally the reason signal.

  • Signal of certainty : An event is described with a certainty with which the security of the memory is conspicuously emphasized and in particular the truth of the statement is demonstratively asserted.
  • Accuracy symptom : Conspicuous improbable precision for subjectively unimportant and therefore more likely to be forgotten details such as dates, numbers, names and colors.
  • Stereotype symptom : the witness conspicuously repeats the key point of his testimony.
  • Audacity signal : The witness goes over to counter-attacks, for which no reason is apparent in the given situation.
  • Anticipatory defense symptom : The witness defends himself against a charge that no one has made against him at this point in time.
  • Symptom of indignation : Indignation is demonstrated demonstratively and appears excessive in the present situation.
  • Justification signal : Instead of the expected facts, the witness provides long-winded, unnecessary or implausible reasons.

Signals of insufficient competence are the poorness signal with the abstractness symptom, the smoothness symptom and the target symptom and the structural break signal.

  • Parsimony signal : a poor framework with a colorless choice of words and a very short statement, at least as far as the actual core is concerned.
  • Symptom of abstraction : abstract statement, general and non-illustrative mode of expression and conventionally described course of action
  • Smoothness symptom : smooth course of action without complications, description tailored closely to the subject of evidence without deviations, even in small details
  • Target symptom : on the one hand consistently oriented, on the other hand limited statement to want to convince the interrogator in a certain respect.
  • Structural break signal: at the interfaces between undisputed and insignificant events and the legally relevant core; Breaks in content, language or situational nature.

criticism

Judges develop a certain knowledge of human nature, but are usually not sufficiently trained to recognize rhetorical techniques and fallacies to a sufficient extent. In addition, the judge, like all people, is subject to cognitive distortions and false conclusions. Even the highest judges are not excluded from this. In addition, there may be distortions and false conclusions, which are codified in the law or anchored in precedents .

"Emotional truths woven by lawyers in the court of law are apparently more important than the truths of actual events. I have grown to fear for those whose innocence became trapped within the legal system. "

“Emotional truths fabricated by attorneys in the court of law seem to be more important than the truths of actual events. I've developed fear for those whose innocence has been trapped in the legal system. "

- Neil deGrasse Tyson

In addition, the anecdotal evidence is often the most important burden of proof , although from a scientific point of view it has the weakest burden of proof.

"No matter what eyewitness testimony is in the court of law, it is the lowest form of evidence in the court of science."

“Whatever the testimony in the court of law is; it is the weakest form of evidence in the court of science. "

- Neil deGrasse Tyson

Individual evidence

  1. ↑ Against the background of the falsified memory ( false memory syndrome ) in trials of Satanism and abuse of children , the forensic assessment of witness statements by psychiatric experts was of particular importance. In the United States and many other countries, various trials were conducted against the background of fanatical religious beliefs. In Germany, the Worms trials between 1993 and 1997 became the biggest judicial scandal in post-war Germany.
  2. ^ BGH, decision of September 11, 2002, Az. 1 StR 171/02, full text .
  3. ↑ Karina Otte: Legal basis of the credibility assessment of witnesses in criminal proceedings. LIT Verlag Münster, 2002, ISBN 3-8258-6304-2 , pp. 190 ff.
  4. ↑ Matthias Jahn: Basics of the evaluation of evidence and credibility assessment in criminal proceedings. (PDF) University of Frankfurt, p. 7 , accessed on February 12, 2018 .
  5. ↑ Matthias Jahn: Basics of the evaluation of evidence and credibility assessment in criminal proceedings. (PDF) University of Frankfurt, p. 10 , accessed on February 12, 2018 .
  6. ↑ Matthias Jahn: Basics of the evaluation of evidence and credibility assessment in criminal proceedings. (PDF) University of Frankfurt, p. 11 , accessed on February 12, 2018 .
  7. ↑ Matthias Jahn: Basics of the evaluation of evidence and credibility assessment in criminal proceedings. (PDF) University of Frankfurt, p. 12 , accessed on February 12, 2018 .
  8. ^ Arntzen: interrogation psychology . 2nd edition 1989.
  9. ^ Rolf Bender, Armin Nack: Establishing facts in court, theory of credibility and theory of evidence .
  10. ↑ "Lie detector" completely unsuitable - Federal Court of Justice generally excludes polygraphic examination methods as evidence in judicial proceedings . Legal internet project Saarbrücken. Retrieved April 29, 2010.
  11. ^ Andrew Jay McClurg: Logical Fallacies and the Supreme Court. A Critical Analysis of Justice Rehnquist 's Decisions in Criminal Procedure Cases. University of Colorado , University of Memphis , July 2, 2010, accessed May 3, 2017 .
  12. ↑ a b Neil deGrasse Tyson : Neil deGrasse Tyson Quotes About Law. Retrieved May 3, 2017 .

literature

  • Zöller: Code of Civil Procedure. 25th edition 2005, § 373 Rn. 10.
  • Friedrich Arntzen: interrogation psychology. 3rd edition, Beck, Munich 2008, ISBN 978-3-406-57629-4 .
  • Friedrich Arntzen: Psychology of the testimony. 4th edition, Beck, Munich 2007, ISBN 3-406-47083-1 .
  • Rolf Bender, Armin Nack , Wolf-Dieter Treuer: credibility and evidence theory, interrogation theory . 4th edition 2014, ISBN 978-3-406-65879-2 .
  • Max Steller & Renate Volbert : Credibility Assessment. In: M. Steller & R. Volbert (Hrsg.): Psychology in criminal proceedings. Huber, Bern 1997, pp. 12-39.
  • Max Steller : Verification of credibility In: Renate Volbert and Max Steller (Hrsg.): Handbuch der Rechtsspsychologie. Hogrefe, Göttingen 2008, pp. 300-310, ISBN 978-3-8017-1851-0
  • Florian Wille: Testimony against testimony in sexual abuse proceedings. Springer, Heidelberg 2012, ISBN 978-3-642-27421-3 , p. 20 ff.

Jurisprudence

  • BGH, NJW 1998, 2222 (credibility and principle of direct evidence)
  • BGH, NJW 1997, 1586 (credibility and principle of direct evidence)
  • BGH, NJW 1991, 3284 (on the credibility of the witness)
  • Higher Regional Court Karlsruhe, NJW-RR 1998, 789 (on the credibility of the witness)
  • BGH NJW 99, 2746 (requirements for credibility reports)

Web links