Concept and significance of the exculpatory evidence
Der Exculpatory evidence is a central concept of evidence in German law and in comparative law, particularly in criminal proceedings, but also in other types of proceedings. It refers to evidence intended to refute an assumption unfavorable to a person—especially the assumption of guilt in criminal law or liability in civil law—or to weaken its prerequisites. The initiative to present exculpatory evidence usually comes from the person threatened by an adverse legal consequence.
Significance in criminal procedure law
Principle of the presumption of innocence
In criminal law, exculpatory evidence is closely linked to the Principle of the presumption of innocence (Art. 6 para. 2 ECHR, Art. 20 para. 3 Basic Law) and to the burden of proof placed on criminal prosecution authorities. The prosecution authorities are obliged to investigate and prove both incriminating and exculpatory circumstances (legality principle, § 160 para. 2 StPO).
Rights of the accused person
The accused can independently present exculpatory evidence in criminal proceedings, for example by
- naming exculpatory witnesses,
- submitting motions for particular expert reports, or
- filing petitions for inspection of evidence.
The court is obliged to pursue these evidentiary requests, provided they are relevant and not obviously futile or inadmissible (§ 244 StPO).
Distinction from counter-evidence
Exculpatory evidence must be distinguished from counter-evidence: Whereas exculpatory evidence aims at a complete refutation of an assumed set of facts, counter-evidence is directed against a specific item of evidence, attempting to undermine its credibility or probative value.
Significance in civil procedure law
Allocation of the burden of proof
In civil law, the necessity for exculpatory evidence is determined by the allocation of the burden of proof. In principle, a party must prove the prerequisites of the legal rule in their favor. Exculpatory evidence is often adduced in situations where, for example, liability is presumed against the opponent:
- Strict liability (e.g., § 831 BGB: exculpatory evidence of the employer)
- Employer liability (§ 619a BGB: presumption of fault in favor of the employee)
- Product liability (§ 1 para. 2 ProdHaftG: exoneration of the manufacturer by proof of certain circumstances)
Content, form, and consequences
If a party provides exculpatory evidence, it escapes the application of a disadvantageous legal consequence, such as liability. The court will then dismiss the claim or pronounce an acquittal.
Exculpatory evidence in other areas of law
Administrative law
Exculpatory evidence also appears regularly in administrative law, for example in matters of regulatory responsibility (see § 17 OwiG) or in civil service law, when acivil servantseeks to contest an alleged breach of duty.
Labor law
In labor law, exculpatory evidence plays a role particularly in connection with protection against dismissal, claims for damages, and within the framework of presumptive provisions (e.g., anti-discrimination protection under AGG, § 22 AGG).
Assessment of evidence and scope of exculpatory evidence
Standard of proof and assessment of evidence
The requirements for exculpatory evidence depend on the applicable standard of proof. In criminal proceedings, the conviction of the court as to guilt is a prerequisite for a verdict of guilty (§ 261 StPO: “court’s free conviction”), so that even reasonable doubt (“in dubio pro reo”) about guilt amounts to effective exculpatory evidence.
In civil proceedings, evidence of a preponderance of probability is generally sufficient unless otherwise provided by law. The significance and scope of exculpatory evidence therefore vary depending on the circumstances.
Obligation to consider exculpatory evidence
The court is obliged to consider significant exculpatory circumstances independently of whose initiative they arise from and to address them in its judgment. If substantial exculpatory evidence is not considered, this can constitute a procedural error and thus a ground for appeal or revision.
Systematic classification and distinctions
Systematics
Exculpatory evidence is part of general evidentiary procedures in procedural law and serves, particularly in criminal law and areas with statutory liability presumptions, as a central corrective mechanism in the field of tension between individual protection and effective enforcement of the law.
Difference from other types of evidence
- Incriminating evidence: Aim is the proof of a fact incriminating the opponent.
- Counter-evidence: Refutation of the credibility of a particular item of evidence.
- Prima facie evidence: Circumstantial evidence, in which full proof is inferred from typical facts; exculpatory evidence then offers the possibility to challenge the presumption.
Practical examples of exculpatory evidence
Example in criminal law
A person is accused of theft. They demonstrate through witnesses or video footage that they were elsewhere at the time of the offense (so-called alibi), which constitutes a classic example of exculpatory evidence.
Example in civil law
An employer is, as a rule, liable for damages caused by an agent under § 831 BGB, but can exonerate themselves by proving that they exercised the due diligence required in the selection and supervision of the agent (exculpatory evidence).
Summary
Exculpatory evidence serves to dispel or weaken an assumption unfavorable to the affected person in court proceedings. Depending on the type of proceeding and legal field, different standards, requirements, and legal consequences must be observed. Through the interplay of the burden of proof, statutory presumptions, and the principles of fair process, exculpatory evidence ensures the consideration and assertion of exonerating circumstances and thus protects against unjustified disadvantages in the legal system.
References
- Meyer-Goßner/Schmitt, Strafprozessordnung mit GVG und Nebengesetzen, latest editions
- Zöller, Zivilprozessordnung, latest editions
- Löwe-Rosenberg, StPO, latest commentaries
- BAG, decisions on the allocation of the burden of proof in employment relationships
- OLG and BGH case law on the taking of evidence and exculpatory evidence
External links
- <a href="https://www.gesetze-im-internet.de/stpo/160.html”>§ 160 StPO – Investigations by the public prosecutor
- <a href="https://www.gesetze-im-internet.de/bgb/831.html”>§ 831 BGB – Liability for agents
- § 22 AGG – Burden of proof
Frequently asked questions
What role does exculpatory evidence play in civil proceedings?
In civil proceedings, exculpatory evidence serves to provide the defendant with the opportunity to exonerate themselves from liability asserted against them or at least to limit its scope. In particular, with standardized statutory requirements, such as in the field of strict liability or contractual liability for assistants, the burden of proof can be reversed to the detriment of the defendant. Exculpatory evidence then requires the defendant to prove that either no breach of duty occurred, they are not at fault, or the damage could not have been prevented despite due care. The requirements for presenting and proving the exculpatory circumstances are generally high, so the practical significance of this concept is particularly pronounced in cases of strict or aggravated liability.
Which statutory provisions provide for exculpatory evidence?
Exculpatory evidence is expressly provided for in various statutory regulations. The most well-known examples include § 831 para. 1 sentence 2 BGB (liability for agents), § 278 BGB (liability for vicarious agents in a broader sense), § 823 para. 1 BGB in connection with certain traffic safety obligations, and, for example, in product liability law or road traffic law in cases of owner’s liability. Exculpatory evidence may also be required of the employer under labor law, such as in § 619a BGB (employer’s liability for damage to the employee). These norms set out to what extent the obligated party can free themselves from liability by proving especially careful conduct or other exonerating circumstances.
How is exculpatory evidence different from the burden of proof?
Exculpatory evidence is closely linked to the allocation of the burden of proof but differs in that it is mostly tied to a statutory reversal of the burden of proof. While the claimant must generally set out and prove all facts giving rise to the claim, exculpatory evidence allows the opponent under certain conditions to defend against the asserted liability by presenting and proving exonerating, liability-releasing facts. This means that, after certain prerequisites have been fulfilled, a secondary burden of proof shifts to the defendant, so they must actively defend themselves against the asserted liability.
What requirements are imposed in practice on establishing exculpatory evidence?
The requirements vary depending on the legal situation and the specific liability scenario but are generally very strict. Exculpatory evidence regularly demands a comprehensive and substantive presentation as well as proof of all facts establishing exoneration. Courts usually set high standards, such as requiring seamless organizational measures, careful selection, supervision, and instruction of assistants, or proof of special controls. Merely referring in general terms to proper procedures is insufficient; concrete and comprehensible explanations regarding one’s conduct and preventive measures taken are required.
What are the consequences if exculpatory evidence is not provided?
If the obligated party fails to provide the required exculpatory evidence, liability as prescribed by law generally applies. This means that they are fully liable for the asserted damage or breach of duty, provided all other liability prerequisites are met. However, consequences may vary depending on the type of liability, for example transitioning to basic liability or liability in certain partial areas only. Thus, exculpatory evidence is often the last opportunity to avoid attribution of a breach of duty or damage.
Can exculpatory evidence also play a role in criminal law?
Although exculpatory evidence is mainly of central importance in civil law, comparable principles also exist in criminal law, especially in cases of negligence offenses and liability arising from monitoring and safety obligations. Here, it can be particularly relevant if the defendant demonstrates that they have taken all necessary and reasonable precautions to prevent criminal behavior. However, in criminal proceedings, the principle of “in dubio pro reo” applies strictly, so the state must, in principle, prove the offense and its criminal prerequisites; the defendant can only contribute to clarifying matters with exculpatory statements.
What is the relevance of exculpatory evidence in international law?
Exculpatory evidence also plays a role in international law, especially in commercial transactions and cross-border liability cases. Many international agreements, such as the CMR (Convention on the Contract for the International Carriage of Goods by Road) or international sales law (CISG), provide for the possibility of exculpatory evidence. Companies or carriers can regularly exempt themselves from liability by proving that the damage could not have been prevented despite all due care and compliance with internationally recognized standards. However, depending on the agreement and its national implementation, the requirements and conditions may differ in detail.
