Witness evidence
The witness testimony is the most common and yet most error form of evidence in legal proceedings. The subject of the witness evidence is basically the declaration of a witness about his or her own (body) sensory perceptions (e.g. visual , acoustic , tactile , kinesthetic , olfactory , gustatory ). The evidence provided by a testimony is strict evidence . The way in which it is collected is regulated differently in different procedural forms and is of course also subject to different regulations in the respective national legal systems. The legal situation in Germany is as follows:
Civil procedural law
The witness is first questioned by the chairman of the panel or the single judge . This is preceded by the instruction of the witness about his duty to be truthful ( § 395 ZPO ). At the beginning of the interview , the witness’s personal details are given ( Section 395 (2) ZPO). The witness must then be prompted to reproduce what is known to him about the subject of the hearing ( Section 396 (1) of the ZPO). This report by the witness is to be distinguished from the subsequent questioning. Since the witness is supposed to report freely here, interim questions, advice and guidance are to be omitted. The report is followed by an interview by the chairman ( Section 396 (2) ZPO); according to this, the members of the court, i.e. the adjudicating judges, are to be given the opportunity to be questioned ( Section 396 (3) ZPO).
For the questioning of the witness by the parties and their authorized representatives, the law provides as a rule that they induce the chairman to submit questions to the witness ( Section 397 (1) ZPO). In contrast, direct questioning of the witness dominates in practice, which can be permitted to the parties, but the legal representative must be permitted on request ( Section 397 (2) ZPO).
Criminal procedural law
In criminal proceedings, particular attention must be paid to the fact that, according to the European Convention on Human Rights , the accused has the right to be confronted with witnesses and to question them ( Art. 6 ECHR). The rules on witnesses are mentioned in §§ 48 ff. StPO . Here, too, the law stipulates that the witness must first give a free report which he must not be interrupted when performing. Afterwards, except in the case of cross-examination , he will be questioned by the chairman. Usually, the latter then gives the right to ask questions in this order to the adjudicating judges, the honorary judges, the representative of the public prosecutor's office , the representative of the accessory prosecution or the representative of the plaintiff , the experts and then to the defense lawyers ; later to the parties present in the proceedings (accessory and liability plaintiffs and defendants). Although this sequence has proven to be the usual procedure, it is not required by law. The chairman can grant the right to ask questions at his own discretion .
The problem is whether the chairman can also withdraw or interrupt the right to ask questions. In any case, this may only be done for an objective reason and in exceptional cases.
Evidence assessment
Like any other piece of evidence, the witness must be "appreciated". The evaluation of the evidence is a judgmental act of the judging court and must show the extent to which the evidence conveys knowledge about the actual occurrence about which evidence is to be collected. It is a regular task of the court. It may only be necessary to call in an expert in exceptional cases, for example if the witness suffers from a mental illness and the court is unable to determine from its own expertise which part of the testimony is based on real memories and which part is based on delusional experience. The report prepared by the expert is often referred to as a credibility report , but in most cases it is a credibility report because what matters is not the abstract credibility of a person, but the concrete credibility of the respective statement.
