Evidence (law)

The evidence referred to the finding of a fact as a fact in a court case by court conviction.

  • 6.1 Principles
  • 6.2 Effects on the German law of evidence
  • 8.1 Forms of evidence
  • 8.2 Types of evidence

Evidence in the legal sense

A civil court about a lawsuit checks on admissibility and merits (see Relations technique). In terms of evidence of festzustellende facts in the examination of admissibility relates to a doubtful admissibility, merits examination in the disputed factual assertion of a party. From the existence of a condition of admissibility, the Court believes in free proof of the correctness of a party claim in strict proof.

The finding evidence runs regularly in a three-act process events with different stakeholders:

  • With the taking of evidence a party shall designate an evidence for their claim, or opponents for their incorrectness. Activity is the party. The taking of evidence must align these on a fact requiring proof. It may also be no evidence ban.
  • In the evidence, the court makes its own perceptions of the evidence. Serving the Court is taking into account the evidence and the parties have a right to ask questions.
  • In evaluating the evidence, the court gives on the result of evidence a conviction of the correctness of the proof of claim. Serving the Court to the exclusion of the parties. In the German case the free evaluation of evidence applies.

If the court believes that the evidence is out and the alleged fact is established for the process. Stay the court is in doubt, then the evidence is not provided and the alleged fact can not be ascertained in the process. Only one obvious fact needs no proof.

Whether and to what extent a court ever prove ( e ) charges and the consequences of a lack of detectability of the judges judged with reference to the burden of proof.

In Criminal Procedure, the court proof of its own raises, or upon a request for evidence ( § 244 Code of Criminal Procedure ).

Evidence under German law

A German court may use to determine the facts of their own perception ( judge any inspection, certificate), the foreign perception (witness ) or external expertise ( expert).

Civil Litigation

Before a civil court in the coming Strictly proof method according to German law, only the following evidence into consideration:

  • Inspection, § § 371 et seq Code of Civil Procedure,
  • Witnesses, § § 373 et seq Code of Civil Procedure,
  • Experts with their opinions in the case, § § 402 ff ZPO among others ( Material evidence ),
  • Certificates, § § 415 et seq Code of Civil Procedure,
  • Party interrogation, § § 445 ff ZPO.

The official information is a substitute and may replace witnesses or expert opinion.

Criminal Procedure Law

In criminal proceedings come at the trial for the Strictly proof only the following evidence into consideration:

  • Expert opinion, § § 72 et seq. Code of Criminal Procedure,
  • Judge any inspection, § 86 Code of Criminal Procedure,
  • Documentary evidence, § 249 Code of Criminal Procedure,
  • Witness, § § 48 et seq Code of Criminal Procedure,
  • Accused ( eg confession statements and submissions ), § 157 Code of Criminal Procedure.

Strictly The proof is there, required for a finding of facts, the guilt and concern the criminal question. That the trial preliminary investigation and interim proceedings shall be conducted with free proof.

Evidence and standard of proof

A proof is provided if the evidence with the judge convinced of the correctness of the disputed statement of fact. The Regelbeweismaß is the full personal conviction of the judge. Only one more than likely would not be sufficient for this principle. Here, since the introduction of free judicial evaluation of evidence ( see § 286 or § 261 Code of Civil Procedure Code of Criminal Procedure ) principle no longer certain rules of evidence (such as the medieval " is allwegs the truth by two witnesses made ​​known. " ) Turn off. Decisive is (in the words of the Bundesgerichtshof) alone, whether the judge is personally convinced of the truth of the statement of fact. For this purpose, the judge must put all the speaking for and against a statement of fact aspects in relation to the necessary standard of proof. He remains bound to the laws of thought and logic to the probability grounded in experience. As a standard of proof, however, should not the scientifically reliable proof be required, but the referee must use an acceptable level for practical life satisfied of certainty that does not exclude recent (theoretical) doubt, but they practically commanded silence. Own rules of evidence, which restrict the free judicial evaluation of evidence, the current criminal law does not know and the civil law only in a few exceptional cases (eg, documentary evidence in accordance with § § 415 ff ZPO, § 165 ZPO according to protocol, delivery ).

Often, the full proof to the satisfaction of the Court can not be provided, resulting in a dismissal of the action. In certain exceptional cases where a dismissal does not appear appropriate, the required standard of proof is, however, reduced (eg in the area of ​​medical liability for negligence and causation). Here the so-called prima facie evidence ( prima facie evidence ) is sufficient. The prerequisite for this is a typical sequence of events that occurs repeatedly and also has probably been present. In this case, it is sufficient that the observer imposes the idea of ​​a certain sequence of events due to an empirical proposition.

A further degraded standard of proof applies, for example with the injunction. Here the prima facie sufficient. As a standard of proof is to be furnished in this case, only the more prevalent probability of the assertion.

Circumstantial evidence

When circumstantial evidence, the judge no conviction of the main fact gleaned from the first step ( ie about the offense by the accused ), but only by circumstantial evidence as auxiliary facts of evidence (such as years of hostility from Angeklagtem and victims, the threat of fact, the time and place opportunity etc. ). Of these auxiliary facts is then closed to the main fact. The evidence (also indicia ) to convey through the only evidence of perpetrators, indeed, the subject and the possible evidence to determine the true facts. The conviction of the court may also rely on circumstantial evidence (see circumstantial evidence ). If several independent evidence suggests that an otherwise not present facts to be proved forming, is spoken by a series of clues. The interaction is an indication that both 1 and 2 are both indication allow to conclude that the main fact. Of the chain of evidence is to be deferred, which is present when multiple indications ( interdependent ) indicate an evidentiary fact. This dependence is at the shortest form of the chain of evidence is that the judge of evidence 1 convinced thereof on evidence 2 and closes only from that of the main fact.

Immediacy in evidence

Essential to the German procedural law is the immediacy of the evidentiary proceedings. The trial court has to draw his conviction of the hearing. Only in exceptional cases can evidence which was not charged by the trial court itself, are introduced into the process. Thus, the evidence can not be transferred other than the trial court, as a rule. In criminal proceedings, the evidence gathered by the police / tax authorities and the prosecution can not be readily introduced into the process. Thus, e.g. a police interrogation report in the main proceedings can not be easily read as documentary evidence. In civil proceedings it is due to the force there disposition maxim, however, quite possible, for example, instead of the examination of a witness to make call in by the court the record of a criminal proceeding in which the testimony is included to be proved as the protocol, and thus the object of the gathering of evidence by the to make court. The log can then be used as a so-called documentary evidence, like other evidence. The contents of the log ( completeness and accuracy ), however, is reassessed by the court as part of the evidence independently and without being bound by any statements contained in the log.

Transboundary evidence

Principle

The evidence requested on judges in other Member States of the European Union ( except Denmark ) governs the judgment rendered in civil matters in the context of judicial cooperation EC Evidence Regulation ( EC BewVO ).

After following the taking of evidence are given:

  • Classical evidence by the requested assistance under the foreign court (Art. 10 et seq BewVO );
  • Examination of evidence by the trial court abroad (Art. 17 EC BewVO );
  • Evidence by video conference (Art. 10 para 4 EC BewVO );
  • Evidence by the requested foreign court in the presence of national trial court (Art. 12 EC BewVO ).

The Regulation itself does not govern priority of the methods described.

Impact on the German law of evidence

It is disputed whether the German process and constitutional law despite the principle given "freedom" of choice among the variants of the process of Regulation ( EC) 1206/ 01 on the German trial judge nonetheless is the primary requirement, select one of the variants in which he can gain an impression of the people interviewed witnesses abroad even to enforce the principle of proof immediacy " ( according to § 343 of the Code of Civil Procedure ( Germany ) ).

Others

The term evidence refers to the situation of the accused as to the provability of an accused criminal offense, such as is at an overwhelming factual evidence moderately hardly an acquittal is possible.

Evidence is from the law enforcement agency collected (especially by the prosecution and the police) in the investigation and submitted to the court.

Evidence in the criminal sense

Evidence is, the court assessed a situation by anyone convincing, and reproducible facts in a way that there are reasonable doubts about the accepted by the law enforcement organs in preliminary Tatbewertung facts of the case is not possible.

Forms of evidence

A fact to be proven directly results from another fact, it is called a direct proof.

A decision important fact gives only indirectly from another fact, it is called an indirect proof. The indirect evidence is also called circumstantial evidence or indications of proof or auxiliary fact.

Types of evidence

When personnel of evidence is the evidence of the person (eg, expert, witness, suspect ). It is dependent on the human perception, the reproducibility of the evidentiary perceptual content, as well as the veracity of the statement.

Tangible evidence to all counts on material evidence or to objects based reasoning (eg judicial any inspection or certificate).

Party (law) Federal Court of Justice of Germany
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