The use of interrogation transcripts and of written declarations in the German criminal process

1. The use of interrogation transcripts and of written declarations in the German criminal process

2. Problem case: • Complainant C goes to the police and accuses D of raping her. Police officer P interrogates C and draws up a protocol of what C said. C signs the protocol. • D is later accused of rape. At D’s trial, C is absent and/or refuses to testify. The court wishes to introduce the police protocol of C’s interrogation as evidence against D.

3. Basic rules The trial court is to determine the „material truth“, with parties’ participation rights Means of proof: witnesses, experts, documents, real evidence Principle of orality:Court is to base its judgment exclusively on what has been said at the trial, not on written file Separation of trial from pretrial investigation conducted by the prosecutor/police

4. Special problems of written (documentary) evidence Documents from pretrial investigation perpetuate the results of pretrial and transport them to trial stage. Indirect evidence is typically less reliable than “immediate” evidence as to same facts. As with all indirect evidence, def. cannot well challenge its reliability and truthfulness.

5. Principle of (substantive) immediacy” Preference for testimonial evidence over secondary documentary evidence (as to same facts), especially over “suspect” evidence such as police transcripts of interrogations Adverse evidence needs to be presented in a way that defendant can challenge it

6. § 250 German Code of Criminal Procedure “Whenever proof is based on a person’s observation, that person shall be interrogated at the trial. The interrogation shall not be replaced by reading the protocol of an earlier interrogation or a written declaration [of that person].”

7. Interestsprotected Optimal approximation of the truth through • immediate presentation of evidence to the factfinder • presentation of best evidence • possibility to discuss evidence at trial (pointing out contradictions, suggesting additional evidence) Possibility of def. to confront adverse testimony (right to ask questions at trial)

8. Problems of immediacy Written documents may be more reliable than witness testimony (because they are closer to observation) Video recording of witness’s earlier testimony may be even more reliable Witnesses have to be present in courtroom at time of trial If witness is unavailable, use of documents may be blocked just “on principle” >> overall loss of relevant information Strong reliance on witness testimony counteracts trend toward witness protection

9. Statutory exceptions from preference for testimony • when parties consent • for prior judicial interrogations (transcripts can be read whenever there is a serious impediment to the witness’s appearance in court) • for prior nonjudicial interrogations when witness has died or is unavailable for the near future • for routine expert testimony, e.g., on blood alcohol concentration, police reports on act of investigation other than interrogation

10. Reform considerations • Lesser reliance on witnesses may provide better proof and reduce pressure on witnesses and their privacy. • Confrontation right can (also) be accommodated by involving the defense in pretrial phase. • New technological means of preservation of testimony need to be taken into account. • >> No rigid rules but pragmatic search for “best evidence” under circumstances of individual case • based on consensus if possible (pretrial conference)