Law of Evidence at Germany
The Law of Evidence in Germany is governed by the German Code of Civil Procedure (Zivilprozessordnung, ZPO) for civil matters and the German Code of Criminal Procedure (Strafprozessordnung, StPO) for criminal matters. Germany follows a civil law system influenced by the inquisitorial model, where judges play an active role in the fact-finding process.
Here is an overview of how the Law of Evidence operates in Germany:
1. Types of Evidence
In German law, the following types of evidence are typically admissible:
Documentary Evidence: Includes contracts, official records, written agreements, emails, and any written or recorded materials that can substantiate claims.
Testimonial Evidence: Statements made by witnesses who have knowledge of the facts of the case.
Expert Evidence: Experts may be called upon to provide specialized knowledge or interpretation in areas such as medicine, forensics, economics, and more.
Physical Evidence: Objects that are physically connected to the case, such as weapons, tools, or other tangible items.
Electronic Evidence: Includes digital files, emails, texts, and other forms of electronic communication.
Presumptions: Legal or factual presumptions that may apply based on established facts.
2. Burden of Proof
Civil Cases: The party making a claim bears the burden of proving it. For example, the plaintiff must prove their case, and the defendant can contest the evidence presented.
Criminal Cases: The prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt. The defendant is presumed innocent until proven guilty.
3. Admissibility of Evidence
Relevance: Evidence must be directly relevant to the issues of the case.
Legality: Evidence must be collected and presented in a manner consistent with German law. Evidence obtained through illegal means (e.g., torture, illegal searches) is generally inadmissible.
Reliability and Authenticity: The evidence presented must be reliable and credible. The court will examine the authenticity of the evidence before accepting it.
Public Policy: Evidence must not violate public policy or constitutional rights, such as privacy protections.
4. Witnesses and Testimony
Witnesses: Both the prosecution and defense in criminal cases, as well as the parties in civil cases, may call witnesses to testify.
Examination and Cross-Examination: Witnesses can be examined and cross-examined by the parties. The judge also has the authority to ask questions and direct the questioning.
Testimony under Oath: Witnesses are generally required to testify under oath.
Witnesses’ Rights: Witnesses have the right to remain silent if their testimony could potentially incriminate them.
5. Expert Evidence
Expert Witnesses: In both civil and criminal proceedings, expert witnesses can be called upon to provide specialized knowledge that is beyond the expertise of the judge. For instance, in a medical malpractice case, a medical expert might be needed.
Court-Appointed Experts: In many cases, the court can appoint an expert, and the expert’s opinion holds significant weight.
Qualifications: Experts must have recognized qualifications and experience in their respective fields.
6. Criminal Evidence
Inquisitorial System: Germany follows an inquisitorial system in criminal law, meaning that judges play a more active role in the investigation of facts. The judge is responsible for ensuring that all relevant evidence is presented.
Admissibility of Evidence: The Code of Criminal Procedure (StPO) provides rules for collecting, presenting, and examining evidence in criminal cases. Evidence obtained unlawfully (e.g., illegal surveillance or torture) is inadmissible in criminal proceedings.
Right to Silence: Defendants have the right to remain silent and are not obligated to testify or provide evidence against themselves. Any confession obtained under duress or threat is inadmissible.
7. Electronic and Digital Evidence
Digital Evidence: With the rise of digital technology, German law has evolved to recognize the importance of electronic evidence. Emails, text messages, social media posts, and digital files are now admissible in court, as long as they meet the requirements for authenticity and relevance.
Chain of Custody: For digital evidence, the chain of custody (documenting the handling of the evidence) must be maintained to ensure its integrity and prevent tampering.
8. Presumptions and Burden Shifting
Legal Presumptions: In certain circumstances, German law allows for legal presumptions. For example, if a person is seen at the scene of a crime, it may be presumed that they were involved unless proven otherwise.
Shifting the Burden of Proof: In some situations, the burden of proof may shift to the other party. For example, if a defendant claims to have an alibi, the burden may shift to them to prove it.
9. Role of the Judge
Active Role in Investigating Facts: German courts, particularly in criminal cases, have an active role in determining the facts of the case. Judges may directly question witnesses, examine evidence, and even summon witnesses if they believe certain facts need clarification.
Adversarial Nature in Civil Cases: While criminal cases are more inquisitorial, civil cases in Germany are primarily adversarial. However, judges still play a key role in ensuring that both parties present adequate evidence.
10. Exclusionary Rule
Exclusion of Illegally Obtained Evidence: Under German law, any evidence obtained through illegal means is generally inadmissible. This includes evidence obtained via unlawful surveillance, torture, or without proper warrants.
11. Civil vs. Criminal Evidence
Civil Evidence: In civil proceedings, the standard of proof is based on a balance of probabilities (preponderance of the evidence). The judge evaluates all evidence presented by the parties and makes a decision based on which side has the more convincing evidence.
Criminal Evidence: In criminal trials, the standard of proof is beyond a reasonable doubt, meaning that the evidence must establish the defendant’s guilt with such certainty that no reasonable doubt remains.
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