Criminal Law, Evidence, Legal Technology

German Courts and Police Don’t Record Interrogations or Court Testimony

The Guardian recently ran an outstanding investigative piece on one of Germany’s most notorious post-war crimes, the abduction and killing of the “girl in the box”, Ursula Herrmann. Herrmann was abducted on 15 September 1981 while riding her bike in a prosperous lakeside town near Munich. Her kidnappers contact the parents asking for ransom, but then communication stopped. Four days after her abduction, her body was found. She had been buried in a box in a remote part of a forest. Her kidnappers apparently wanted to keep her alive, since they constructed an elaborate system of plumbing pipes to ventilate the box and even provided her with reading material. However, without active circulation, the ventilation was pointless. Eventually, a neighbor with financial troubles, Werner Mazurek, was convicted of the crime, but the evidence against him wasn’t overwhelming, and many believe the man was wrongly convicted.

One of the key pieces of evidence against Mazurek was a statement by a man named Klaus Pfaffinger, who said Mazurek paid him to dig the hole for the box. The Guardian piece describes how the statement was taken:

He was also chronically work-shy; questioned in 2008, his former wife called him a “lazy guy” who would never have agreed to dig a large hole.

As the court heard, Pfaffinger’s confession was not even signed; the investigator wrote it down from memory weeks later. And, as with Mazurek, there was no DNA proof connecting Pfaffinger to the crime.

Wait, what? A key interrogation in a kidnap-killing case wasn’t even recorded? A cop was allowed to testify to what the witness had said based on his own notes, recorded weeks after the interrogation?

Surely things have changed since then, with the advent of modern recording technology. The answer is, amazingly, no. As this fine piece (g, paywall) by Helene Bubrowski in the FAZ notes, there is no legal requirement in Germany that statements to police in criminal cases be recorded, and the practice is still uncommon. In fact, in criminal trials for serious offenses, no transcript or recording of the witnesses’ testimony is made; instead the judge takes notes, often while questioning the witness himself or herself. These notes form the only basis for documenting what the witness said.

German attorneys have been trying to change this:

The German bar has been fighting for decades to document evidence in criminal trials. As long as there are no recordings, defense attorney cannot show during appeal that a judge misunderstood a witness about a key point. That this doesn’t have to be the case is shown by the many courts which do document testimony. In criminal cases in district courts [which are less serious], a clerk takes notes of what the witness said; the court can also order a sound recording instead of these notes. In proceedings in civil courts, labor courts, and administrative courts, the substance of witness testimony is recorded. Only in serious criminal cases — of all things — held before Regional and Higher Regional courts is there no provision for recording witness testimony.

The vast majority of European countries permit recording, and it is now the EU standard. In fact, Bubrowski notes, if Germany were trying to be admitted to the EU now, it would likely have to remedy this defect in its procedural laws. Yet the majority of German judges remain opposed:

In Germany, most of the bench resists documentation of testimony. They have many arguments: Judges are worried that listening to the recordings is time-consuming. They also invoke the privacy rights of the parties, and costs. Finally, they claim there might be problems during criminal appeals, since the fact findings made by the trial judge, as such, cannot be questioned.

Lawyers tend to be very small-c conservative in general, and being German only enhances this tendency. The Free Democratic Party has introduced a law which would require recording, and a version of this law will probably pass at some point. But for now, the only remedy you have if the trial judges mistakenly — or intentionally — distorts the testimony against you is, essentially, nothing.

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