Spontaneous expression (law)
In a criminal investigation , a spontaneous statement refers to the statement of a person entitled to refuse to provide information or to testify in a certain procedural situation : Criminal investigative bodies must instruct a potential witness or suspect before questioning them that they do not need to incriminate themselves or their relatives. The same applies to any other right to remain silent if there is an indication or a presumption of its existence.
If no such instruction, evidence obtained from a survey are unusable, because it is basically an admissible evidence , see. Nemo tenetur principle . A spontaneous statement is an utterance of its own accord, even before the criminal investigation authorities have been properly and promptly instructed, i.e. before they have started an interview. Therefore, a spontaneous statement is not a statement in an interrogation in the legal sense.
The spontaneous statement can be used as evidence in the proceedings, since the law enforcement authorities have no obligation to ignore such announcements. The aim of the ban on self-incrimination is not to protect against any self-infliction. You just shouldn't incriminate yourself out of a mistaken fear of authority or ignorance of the law. These principles have been confirmed by the Federal Court of Justice (BGH).
- Case : The accused had a blood sample taken on suspicion of attempted manslaughter on his wife, he began to cry and suddenly said to the police officer that it was him and that he was sorry. When the police officer asked if he understood correctly, the suspect said that of course it was him, but that he was not sorry for the act, but for the fact that his wife was still alive. When he was then instructed, he asked for a defense attorney and refused to give any further information.
The Federal Court of Justice decided that this spontaneous confession could be used. In jurisprudence, it is argued that the Federal Court of Justice is incorrectly implementing the established principles. There is no room for the exploitation of a spontaneous statement if there is a violation of the Nemo tenetur ban. In the present case, no interrogation had begun, but considerable investigative interventions had created pressure to self-inflict that could be greater than during an interview. According to this view, the accused should have been instructed much sooner.
See also
- For accused / accused / accused: Section 55 , Section 136 (1) sentence 2, Section 163a (3) and Section 243 (4) StPO, informational questioning
- On the extended prohibition on the use of evidence: fruits of the poisoned tree
Single receipts
- ↑ Judgment of September 27, 1989 - 3 StR 188/89, NJW 1990, 461.
- ↑ Gerhard Fezer : Individual questions to instruct the accused according to StPO § 136 Abs 1 S 2 in case of spontaneous confession. The criminal defense attorney 1990, 195; see. also Irmgard Maria Schaal: Prohibition of using evidence in informational interviews in criminal proceedings. Dissertation Passau, 2002, p. 107 online ( Memento of the original dated May 11, 2005 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.
