Cross-examination
The cross-examination is in German criminal procedure a kind of interrogation in which witnesses or experts alone prosecutor and defense lawyers interviewed are.
General
In criminal procedure law, interrogation is the questioning of the accused , witnesses or experts carried out by law enforcement authorities in order to clarify the course of events . The hearing of the accused and the taking of the evidence during the court process are usually carried out by the presiding judge ( Section 238 StPO ); on request, associate judges can also direct questions to the accused, the witnesses and the experts. Public prosecutors and defense lawyers, but also lay judges and the defendant himself, can ask additional questions ( Section 240 StPO).
Cross-examination in Germany
Pursuant to Section 239 (1) of the Code of Criminal Procedure, the judge must, if the public prosecutor and the defense request the same request, leave the hearing of the witnesses and experts appointed by the public prosecutor and the defendant to the public prosecutor and the defense. In the case of the witnesses and experts nominated by the public prosecutor's office, the defense primarily has the right to question those named by the accused. Once they have completed the interrogation, the judge may ask questions that appear necessary to further clarify the matter (Section 239 (2) StPO). Pursuant to Section 241 of the Code of Criminal Procedure, the judge is entitled to withdraw the right to interrogate in the event of misuse of cross-examination or to reject them in the case of unsuitable or irrelevant questions. This alternating right to ask is more likely to be described as interrogation . It has no practical significance; use is made of it in the rarest of cases.
Theoretically, mutual questioning of witnesses is also possible in civil proceedings ( Section 397 (2 ) ZPO ), but is rarely carried out in practice. In civil proceedings, too, evidence is primarily taken by the court ( Section 396 ZPO). Both parties can then question the witness one after the other, if only to avoid the intimidating effect on the witness that is usually associated with cross-examination.
Cross-examination in the US
In contrast, the cross-examination in the USA is the most important act of litigation . A real confrontation occurs (with the US cross-examination English cross examination ), which according to Rule 611b Federal Rules of Evidence (FRE) has a highly confrontational character and serves to expose the illegal witness preparation and credibility to shake the opposing witnesses. Unlike the German cross-examination of § 239 Code of Criminal Procedure is the American cross-examine a cross-examination , an element of the truth serving confrontation right .
First of all, the party that named him as a witness questions the witness ( English direct examination ). There are only permissible questions about evidentiary facts, but not leading questions ( English leading questions ). A witness is also not allowed to give opinions or conclusions unless he is an expert witness who has particular expertise in a particular area. Prohibited questions the other party may by opposition ( english objection ) complain and seek a decision of the Court on the admissibility. The objection here is an objection that is immediately decided by the judge. If he accepts the objection ( English sustained ), the respondent no longer has to answer, if it is rejected ( English overruled ), the answer is required. The survey by the other side, the actual cross-examination follows (the questioning by the ordering party English cross examination ) representing.
The purpose of the cross-examination is to determine the credibility and possible bias of the witness, who has not been named, because of personal relationships with one of the parties to the proceedings or any other self-interest in the outcome of the proceedings. Therefore, leading questions are also allowed here. The witness himself may be questioned about possible previous convictions for false testimony or perjury . It is also common confrontation with a possibly different entering an Witness during court preliminary investigation ( English discovery ). However, only questions on issues that were already the subject of the direct questioning are permitted.
A party also has the right to cross-examine in civil proceedings if the opponent has named the witnesses.
In the USA there were occasional cross-interrogations that interfered with human dignity and would be constitutionally untenable according to German legal opinion . The case of Alger Hiss was characteristic of this . Perjury about his previous communist activities, uncovered in the rough cross-examination, was what sent him to prison in January 1950.
Trivia
The special drama of cross-examination has been used in many crime films, such as by Billy Wilder in Witness for the Prosecution ( English Witness for the Prosecution ), who celebrated 1958 premiere in January.
Individual evidence
- ↑ Ewald Löwe / Karl Schäfer, Large Commentary on the Criminal Procedure Code and Courts Constitution Act , Volume 1, 1988, p. 299
- ↑ Christoph G. Paulus, Civil Procedure Law. Cognitive proceedings and foreclosure , 3rd edition, Berlin 2004, Rn. 246. ISBN 3-540-43770-3 .
- ↑ Mei Wu, The Reform of Chinese Evidence Law Against the Background of German and American Regulatory Models , 2010, pp. 201 ff.
- ↑ US Supreme Court, Barber vs. Page , 390 US 719, 1968, 725
- ^ American Bar Association: How Courts Work. Steps in a Trial. Direct Examination ( Memento of the original dated August 22, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Sven Timmerbeil, Witness Coaching and Adversary System , 2004, p. 39
- ^ American Bar Association: How Courts Work. Steps in a Trial. Cross examination
- ^ Supreme Court of Missouri, Hungate vs. Hudson , 185 SW2d 646, 353 Mo. 944 (1945)
- ↑ Gerhard Leibholz, Yearbook of Contemporary Public Law: NF 4 , 1955, p. 233
