Hearsay witness
Definition and classification
The term Hearsay witness (also indirect witness or witness from indirect perception) refers in German law to a person who cannot directly recount their own observations about a particular fact, but instead testifies about facts that have been relayed to them by another person. Hearsay witnesses base their testimony exclusively on information they have ‘heard’ without having been a direct observer of the underlying event.
Distinction from eyewitnesses
In contrast to the eyewitness or direct witness, who can provide information about relevant facts based on their own sensory perception, the perception of a hearsay witness is purely indirect. Such testimonies involve an increased risk of perception, memory, and transmission errors, as additional layers of perception and understanding exist between the actual event and the court testimony.
Function and significance in civil procedure law
Admissibility of examination
According to the provisions of the Code of Civil Procedure (ZPO), in principle, anyone who can report facts that may help to clarify a legally relevant question in the dispute is admissible as a witness (§ 373 ZPO). This does not exclude hearsay witnesses. Likewise, the method of witness examination under § 355 ZPO applies to both categories.
Evidentiary value of the testimony
Although the statement of a hearsay witness is generally admissible in civil proceedings, it is subject to strict and critical evaluation by the court (§ 286 ZPO). The court must carefully assess to what extent the value of the testimony is impaired by the lack of direct perception. The evidentiary value is typically lower than that of a direct witness. A conviction or decision based solely on the testimony of an indirect witness faces significant concerns, especially if the person who originally reported the fact cannot themselves be heard.
Proof using chain rumors
In so-called chain rumors, where statements are passed along multiple intermediaries and are finally presented as witness testimony, the risks of perception and reporting errors are multiplied. In such cases, the court must evaluate such statements with particular caution and skepticism.
Role in criminal procedure law
Hearsay witness as evidence
Examination of a hearsay witness is also admissible in criminal proceedings (§ 244 StPO). The jurisprudence in criminal procedure basically recognizes the statement of an indirect witness as an admissible means of evidence. Especially in connection with the confrontation between witnesses and accused persons or with incriminating statements from the defendant’s environment, indirect witness testimony can play an important role.
Requirements for judicial evaluation of evidence
The evidentiary value of testimony based on hearsay is given special attention in criminal proceedings. Jurisprudence stresses that a conviction based solely on the testimony of an indirect witness, according to the principle of ‘in dubio pro reo’ (when in doubt, for the accused), is generally inadmissible, as long as the direct witness is available without insurmountable obstacles. The courts require that, where possible, the person with direct perception must be summoned for testimony (see BGHSt 29, 18).
Protection of defense rights
From the principle of a fair trial and the immediacy of evidence taking arises the defendant’s right to challenge the core of the statement at its source (i.e., with the person who originally perceived the event). The accused must not be deprived of the opportunity to question incriminating witnesses directly through an indirect testimony if this is possible without significant hindrance. The court must therefore examine whether the original witness is available and, if necessary, summon them.
Hearsay witnesses in administrative and social proceedings
Indirect witness statements are also admissible evidence in administrative and social court proceedings (§ 98 VwGO, § 103 SGG in conjunction with § 373 ZPO). However, the principles of evidence evaluation also apply here, whereby the court is granted discretionary power in forming its convictions about the facts. The statement of a hearsay witness usually serves only as an initial indication; classic fact-finding typically requires calling witnesses with personal perception.
Limits and risks of hearsay witnesses
Credibility issues
A key weakness of a hearsay witness’s statement lies in the limited verifiability of the source’s credibility. Since the witness merely conveys what another person has told them, the direct verifiability of the primary information source’s statement is lacking.
Principle of immediacy
Both in criminal and civil proceedings, the so-called Principle of immediacyexists, which requires that the court undertake direct evidence taking. This principle is breached by the examination of hearsay witnesses, which is why courts should always attempt to summon direct witnesses when they can be reached.
Practical examples and areas of application
- Criminal proceedings: A person tells the police that their friend saw the accused commit a crime. If only this person is examined as a witness and not the friend themselves, this constitutes hearsay testimony.
- Civil proceedings: In the context of a traffic accident, a witness states that her partner observed the accident and informed her of the events. In the trial, only the partner recounts what was reported to her.
- Administrative proceedings: In asylum law, it can occur that relatives report experiences as credible, which other family members have told them about.
Case law and bibliographic references
The highest court rulings (including the Federal Court of Justice, BGHSt 29, 18; BGH, NJW 2003, 1036) emphasize the limited evidentiary value of hearsay witnesses and the necessity, whenever possible, to hear the original witnesses themselves. The literature recognizes evidentiary value, especially when there is no doubt about either the secondary or the primary report and no other evidence is available (Thomas/Putzo, ZPO; Meyer-Goßner/Schmitt, StPO).
Summary
Ein Hearsay witness is a person who, in judicial proceedings—regardless of the area of law—testifies solely about knowledge that has been reported to them by third parties. This form of indirect witness testimony is legally permissible but is subject to significant limitations regarding its evidentiary value. Particularly due to potential sources of error and limited verifiability, judicial evaluation of hearsay evidence is especially critical and cautious. The objective always remains to clarify the facts of the case as directly as possible through witnesses with personal perception. The testimony of hearsay witnesses may provide clues, but generally is not sufficient as the sole basis for a decision.
Weblinks and further reading
- Thomas/Putzo: Code of Civil Procedure, § 373 ZPO
- Meyer-Goßner/Schmitt: Code of Criminal Procedure, § 244 StPO
- Krenberger/Krumm: Civil Procedure Law, Evidence by Witnesses
- BeckOK, ZPO, § 373 ZPO, Rn. 13 ff.
- NJW 2003, 1036
(Note: Some of the cited works and rulings can be accessed in specialized literature or via legal databases.)
Frequently asked questions
Can the statement of a hearsay witness be admissible as evidence?
Under German law, the statement of a hearsay witness is generally admissible as evidence, but its probative value is usually diminished. A hearsay witness does not recount what they have personally perceived, but instead describes statements or observations of third parties, which they themselves have only indirectly perceived. In criminal procedure law (§ 250 StPO) the so-called principle of immediacy is relevant, which provides that the judge should form their conviction primarily based on direct perception of the evidence. Nevertheless, in practice, hearsay evidence is admitted, especially when the original witness cannot testify for reasons such as death, illness, or unavailability. The quality and usability of such testimony depends primarily on the ability to verify both the credibility and reliability of the hearsay witness and of the person whose statement is being recounted.
What risks are associated with using a hearsay witness in proceedings?
The use of a hearsay witness entails various risks for the proceedings. On the one hand, passing on information increases the danger of misperception, misunderstandings, or faulty recollections. On the other, the court typically cannot verify the original statement—particularly regarding bias, truthfulness, and motives of the actual observer—which can lead to uncertainty when evaluating the evidence. In extreme cases, this can negatively affect the search for truth and lead to a flawed judgment. Furthermore, the party against whom the hearsay evidence is presented is often unable to develop an effective defense strategy through direct questioning of the original source of the statement, which may infringe on their right to be heard.
Are hearsay witnesses treated the same in civil and criminal proceedings?
No, the treatment of hearsay witnesses differs in civil and criminal proceedings. In civil proceedings (§ 286 ZPO), the principle of free evaluation of evidence applies; the court can weigh the value of circumstantial and witness evidence—including hearsay—at its own discretion. Nonetheless, here too, the evidentiary value is generally reduced. In criminal proceedings, however, the principle of immediacy is expressly emphasized by § 250 StPO, so that hearsay evidence is only significant if the original witness is unavailable or, exceptionally, for other valid reasons. Thus, in practice, hearsay testimony is evaluated even more restrictively in criminal proceedings and only relied upon for convictions if additional, substantial evidence exists.
What role does the principle of immediacy play in hearsay witness testimony?
The principle of immediacy plays a central role in the treatment of hearsay witness testimony, especially in criminal proceedings. According to this principle, the court should base its conviction primarily on direct, immediate perception of evidence and witnesses. Hearsay witnesses run contrary to this principle, as they are not themselves direct observers. However, jurisprudence accepts that there are exceptional cases in which the original witness is unavailable. In such circumstances, prevailing practice allows the use of hearsay evidence, though the court must strictly assess whether and to what extent the statement is reliable. The principle of immediacy therefore does not amount to an absolute prohibition of using hearsay, but calls for increased caution and critical evaluation of such testimony.
Can a judgment be based solely on hearsay evidence?
A judgment based exclusively on hearsay evidence is regularly not legally tenable. In criminal proceedings, it is generally excluded to base a conviction solely on the statement of a hearsay witness, as this typically fails to meet the minimum requirements for judicial conviction and for a fair trial (§ 261 and § 250 StPO). In civil proceedings, the court is free in its evaluation of evidence, but even here such an assessment would regularly violate the principle of free but conscientious evidence evaluation. A judgment must ultimately rest on sufficient and, if possible, direct evidence, with hearsay statements serving only as supplementary material.
Are hearsay witnesses required to disclose the source of their information?
Yes, hearsay witnesses are required to provide detailed information about the source of their information as part of their testimony. This means they must specify from whom, when, under what circumstances, and with what exact wording or content the information was conveyed to them. These details are essential for the court to make a realistic assessment of the testimony’s credibility, the reliability of the source, and any potential transmission errors. Insufficient details about the source of the information regularly further weaken the evidentiary value or can even render the statement inadmissible.
Can parties have a hearsay statement tested by cross-examination?
German law does not provide for a classic Anglo-American cross-examination, but parties in both civil and criminal proceedings generally have the right to question witnesses. For hearsay witnesses, however, this right is limited, as they regularly do not report their own observations and thus cannot provide details of the alleged original facts. However, party representatives can ask detailed questions about the chain of information, the circumstances of transmission, and the motives of the third person, although this may remain partly speculative. A full examination and refutation is only possible if the original source of the information (i.e., the actual eyewitness) is also summoned and questioned. If this is not possible, the right to question is limited, which contributes to the fundamental problems of hearsay testimony.
