Witness from hearsay
As a hearsay witness in is German law , a witness of the information referred to, testified that someone opposite him at a particular event has made.
Because he is communicating his own perceptions , his interrogation does not violate the principle of immediacy . Since indirect information with several links there is a higher risk of distorting events or reproducing them incompletely, higher demands must be placed on the evaluation of evidence.
Background and details
If a direct witness cannot be heard for factual or legal reasons, it is possible to use hearsay witnesses instead , whose hearing may even be required according to Section 244 (2) of the Code of Criminal Procedure .
In criminal proceedings , the judge must examine the value of the less relevant, indirect evidence extremely carefully as part of his duty to provide information and decide whether he considers it sufficient. If he can form his own opinion during the main hearing , substitute evidence is excluded.
The principle of immediacy includes the primacy of personal evidence over documentary evidence. He closes according to § 250 StPO only stipulates that witness statements are replaced by interrogation protocols if it would be easily possible to question the witnesses directly or if they according to § 252 StPO make use of their right to refuse to testify . In this case, the court is prohibited from replacing the inadmissible interrogation with recourse to written records or from questioning hearsay witnesses about corresponding statements ( BGHSt 21, 218).
According to the prevailing opinion, a hearsay witness can not only be questioned if the facts communicated constitute a criminal offense , but also if they serve as evidence of these facts. The Federal Court of Justice (BGHSt 1, 337) decided that it was possible to make statements on the subject of the gathering of evidence that a witness who refused to testify at the main hearing (here a child abused by his father) had made to others.
It does not matter how the perception was made. The witness may have made them on behalf of the police, the court or accidentally.
Individual evidence
- ^ Witness from hearsay , in: Creifelds, Legal Dictionary, CH Beck, Munich 2011, p. 1445.
- ↑ Lutz Meyer-Goßner , § 250 StPO, Rn. 4, Code of Criminal Procedure with GVG and subsidiary laws, CH Beck, Munich 2010, p. 1042.
- ^ So Lutz Meyer-Goßner, § 250 StPO, Rn. 4, Code of Criminal Procedure with GVG and subsidiary laws, CH Beck, Munich 2010, p. 1040.
- ↑ Ferdinand O. Kopp, Verwaltungsgerichtsordnung, § 96, Rn 5, Part II, Proceedings at first instance, CH Beck, Munich 1994, p. 1239.
- ↑ Lutz Meyer-Goßner , § 250 StPO, Rn. 4, Code of Criminal Procedure with GVG and subsidiary laws, CH Beck, Munich 2010, p. 1041.
