Having witnesses heard for your defence

A witness must be able to contribute something relevant

A witness can explain facts from his own observation. That is different from a friend who you consider trustworthy or a person who feels the same way about the matter. Therefore, first ask what information the witness can clarify. Did he see the action, hear a conversation or know something about a relevant time? The significance for a decision in the criminal case must be recognizable. A general statement of support has a different function than a concrete exculpatory observation.

Our analysis starts with a question card per person: what does this witness know, from what source and what dispute can influence the answer? This also makes it clear when a different type of research is more suitable. A camera operator can talk about the system, while the recording itself is needed to assess a movement. An expert can explain technical significance, but did not necessarily witness the event. A targeted request chooses the appropriate source instead of collecting as many names as possible.

The right to interrogate has its own weight

When incriminating witness testimony is used as evidence, the opportunity for proper and effective questioning is an important safeguard. After Keskin, the Supreme Court discussed the assessment of such requests in 2021. Under certain circumstances, the interest in hearing an incriminating witness is assumed and the same extensive motivation cannot be requested as if it were solely a new research idea of ​​one's own. The precise procedural position remains relevant. (Supreme Court discussed the assessment of such requests after Keskin in 2021)

This does not mean that every name in every file must automatically be heard again. Among other things, the statement, the intended use of evidence and a previous actual interrogation opportunity must be taken into account. An earlier written response does not equal a full review in every situation, but the circumstances must be investigated. The lawyer can base the request on the correct framework. The practical gain is that an important right of defense is not wrongly treated as a non-binding wish to speak to everyone again.

A personal witness request requires a specific investigation question

When a proposed exculpatory witness is presented, it must be clear what that person can explain and why that is important. The information that someone was there may be insufficient if the relevant observation remains unclear. For example, a request may explain that the witness saw the placement of a bag or can confirm a particular access at a relevant time. The lawyer does not have to guarantee an outcome, but must make the relevance understandable.

Be honest about the source of the expectation. Have you spoken to the witness yourself, is there an earlier report or do you just suspect that he must have seen something? These are different principles. A witness may also say that he did not observe something. The goal is testable research, not a predetermined favorable statement. Collect existing contact information for the attorney without pressuring the content. An uncertain but relevant lead must be presented as such.

Early requests can make a difference

The rules for witness requests differ depending on phase and situation. A request in preparation may be assessed or organized differently than a request for the first time at the hearing. The Code of Criminal Procedure and the criminal procedure regulations provide the procedural framework. Let the lawyer determine the applicable term, route and standard. A single email to the registry is not automatically the complete, competent request that the law intends. (Code of Criminal Procedure · criminal procedure regulations)

Therefore, discuss research wishes early, even if not all details are known yet. Indicate what information is missing to define the request. A name that will only be known later requires an explanation of that development. A previous rejection must be included in a repeated request. Merely resubmitting the same text does not make it clear why reconsideration is necessary. A new file finding or a changed use of evidence may require a targeted addition. The current significance for the defense remains central.

The file provides the questions, not rehearsed answers

Read the existing statement with the lawyer. Which observation is disputed, what information is missing and where does a conclusion seem to go further than what the witness himself saw? Distinguish between a contradiction and a difference in detail that can be explained. A witness does not have to repeat every word from months ago to be reliable. At the same time, substantial changes may require an explanation. The questions should focus on the relevant difference.

Useful preparation formulates topics and sources, not answers that a witness must give. Don't ask anyone to change their story or agree with others. If personal contact is necessary to understand availability or an initial source of information, let the attorney determine the appropriate manner. A pre-driven script can damage the value of the later statement. Save original messages that contain an initial observation. They can also show what the person already knew before the matter was discussed in detail.

Carefully separate observation and interpretation

A witness may say that someone seemed angry, but the basis for this may be voice volume, words or movements. It is useful to know these observations separately for the assessment. Sight, distance, light, duration and attention can also have an influence. Don't just ask whether the witness is certain, but what that certainty is based on. A strong belief is not the same as an unlimited capacity for perception.

The circumstances are extra important for identification. Did the witness already know the person, see a face or deduce an identity from clothing or a vehicle? A recognition can be convincing, but requires the right context. A targeted interrogation examines that basis without intimidating the witness. The defense may be critical and at the same time must respect the integrity of the interrogation. The lawyer can structure questions in such a way that the judge later understands which parts were directly observed and which were completed by the witness.

Witnesses also have rights and practical limitations

A witness may, under certain circumstances, have a right of non-disclosure or may have to deal with safety and health questions. An untraceable or deceased witness also raises different problems than someone who is easily available. This does not make the right to interrogate meaningless, but requires a separate assessment of reasons, weight of evidence and any compensatory guarantees. No general internet rule stipulates that the same consequence must follow in every case.

Have concrete obstacles recorded and discuss what alternatives exist. Sometimes a different method of hearing or additional research can help, sometimes a substantial defense problem remains. The question of whether a statement can be used despite the absence of interrogation is part of an assessment of the fair process as a whole. The older overview case law on witness requests must be read with later case law such as Keskin. An outdated criterion may not simply be applied as a fully up-to-date framework. (older overview of case law on witness requests)

Read a rejection by reason and follow-up

If a request is rejected, it is important which grounds the judge cites. Has the importance been insufficiently explained, is there a relevant contribution missing or is there a practical or legal obstacle? These reasons require different responses. The lawyer can assess whether additional substantiation, a repeated request in the event of changed circumstances or a later legal remedy is appropriate. A rejection does not automatically mean that any other investigation into the same fact is pointless.

Save the request and decision together. If the judge later relies on the statement, the case history may be important. Also note which interrogation opportunity was actually offered, not just that an interrogation took place somewhere. The practical value of a good file is that the progress remains controllable. A general complaint that you were never allowed to ask for anything is more difficult to assess than an overview of requests, decisions and substantive topics that could not yet be assessed.

Fictional example: the only direct observer

A fictitious suspect sees a statement from the only direct observer cited as important evidence. He has never been able to have that person interrogated. He also wants to have a neighbor hear who he believes can confirm a relevant departure time. These are two witness questions with a different starting point. Interrogating the incriminating observer and investigating an exculpatory point in time each deserve their own motivation and procedural assessment.

The lawyer explains in the first statement which statement is incriminating and which effective option was still missing. The second makes it clear what the neighbor can know and why the time is relevant. The example does not guarantee that both persons will be heard. It shows why one standard sentence about wanting to hear all witnesses makes too little distinction. Good preparation respects both the right to interrogate and the need to formulate new research wishes in a targeted and understandable manner.

One witness card per person and decision question

Create a separate block for each proposed witness. Do not use sensitive contact information in a public document. Indicate to the lawyer where the information came from and what contact has already taken place. The card helps choose the right legal basis and prevents a request from being based solely on a name or expectation. It does not replace formal submission or assessment by the competent court.

• Person: identity and secure contact details to the extent known.
• Source: existing statement, own observation or reason to expect relevant knowledge.
• Direction: test an incriminating statement or investigate a specific exculpatory question.
• Subject: fact, period, place and significance for a decision in the case.
• Previously: Interrogation opportunity provided, previous requests and decisions.
• Practical: availability, special needs and possible barriers.
• Procedure: applicable route, submission time and defined next step.