Definition and Significance of the Exploratory Evidence Motion
Ein Exploratory Evidence Motion is a term used in German civil and criminal procedure law. It describes a motion by which a party seeks the taking of evidence regarding a fact or circumstance that is as yet undefined or not specifically identified. In contrast to an admissible evidence motion, the exploratory evidence motion leaves open what exactly is to be proven or which specific facts the offer of evidence refers to. The term is of particular legal significance, as such a motion is regularly inadmissible and is rejected by the courts.
Legal Basis
Civil Procedure Law
In civil proceedings, the exploratory evidence motion is generally assessed according to the requirements of §§ 284 et seq. ZPO (Code of Civil Procedure). According to § 286 ZPO, the court decides on the outcome of the evidence after its free conviction. However, the requirements of the obligation to substantiate and the so-called allegation of fact must be observed: It must be clearly and specifically presented which fact is to be proven. An exploratory evidence motion aimed at establishing facts through a general gathering of evidence does not meet these requirements.
Criminal Procedure Law
In criminal proceedings, the requirements are mainly determined by §§ 244 et seq. StPO (Code of Criminal Procedure). According to § 244 para. 3 StPO, evidence motions must generally be admitted unless they are obviously aimed at exploration. Therefore, an exploratory evidence motion is also inadmissible in criminal procedure if the motion broadly anticipates an investigation without being based on specific factual allegations.
Distinction from Other Evidence Motions
Admissible Evidence Motion
An admissible evidence motion must always contain a concrete and specific allegation of fact as well as the evidence to be used (e.g., witness testimony, document, expert opinion) and an indication of the fact to be proven. The requested taking of evidence serves to establish certainty regarding a previously stated, disputed fact.
Exploratory Evidence Motion
By contrast, an exploratory evidence motion exists where, for example, a party requests: “Witness X shall be heard as to whether and what he knows about the incident.” The statement is missing as to was what exactly is to be proven. The motion merely serves the purpose of obtaining facts through inquiry so that they can then be introduced into the legal proceedings.
Evidence Investigation Motion
An evidence investigation motion, on the other hand, is characterized by seeking the general obtaining of information by the court (court’s own investigation) without any specific party submitting an evidence motion. This aspect also distinguishes it from the exploratory evidence motion.
Legal Consequences of the Exploratory Evidence Motion
Rejection by the Court
An exploratory evidence motion is generally inadmissible and is therefore to be rejected by the court. According to § 139 para. 1 ZPO, the rejection must be reasoned. The court can and must allow the party the opportunity to specify the motion. Only after repeated insufficient specification may the motion be finally rejected.
Consequences for the Evaluation of Evidence
The rejection of an exploratory evidence motion means that the alleged fact will not be included in the evaluation of evidence. A possible consequence is that the party who bears the burden of proof for a disputed fact may be unable to provide the required proof, which can adversely affect the outcome of the proceedings.
Key Criteria for Distinction
Specificity of the Allegation of Fact
The central distinguishing feature is the specificity of the allegation. An admissible evidence motion must be so specific that the court and the opposing party can recognize what the offered evidence refers to and what is to be proven through the taking of evidence. Generally worded, blanket motions do not meet this requirement.
Obligation of the Parties to Substantiate
The obligation to substantiate requires that all factual circumstances to which the offer of evidence relates must be stated as precisely as possible. Only with this precision can it be determined whether taking evidence is necessary and admissible, or whether it is merely an inadmissible exploration.
Case Law on the Exploratory Evidence Motion
The highest courts, particularly the Federal Court of Justice (BGH), regularly confirm that exploratory evidence motions are inadmissible (see, e.g., BGH, judgment of 18.10.1995 – IV ZR 24/95; BGH, decision of 14.11.2006 – VI ZR 243/05). The court is not obliged to pursue proceedings based merely on suspicion or to take evidence without a concrete factual allegation.
Significance in Legal Practice
Accurate knowledge of and adherence to the requirements for an admissible evidence motion is of considerable importance for parties to proceedings. Mistakes in filing motions, such as making an exploratory evidence motion, can result in essential evidence being disregarded and procedural rights being lost.
Special Features Regarding Certain Means of Evidence
Evidence by Witnesses
In the context of witness evidence, it is especially important that the subject matter of the evidence is precisely defined. General requests that the witness recount everything he or she “has to say about the facts” are insufficient.
Expert Evidence
Even when requesting an expert opinion, the subject of the evidence must be defined with such precision that the facts to be examined are clearly identifiable and assessable for the court and the expert.
Summary
The exploratory evidence motion is an inadmissible instrument of evidence in German procedural law. It is characterized by the lack of specification of the facts to be proven and is regularly rejected by the courts. The precise determination of the subject matter of the dispute, the parties’ obligation to substantiate, and the clear identification of the facts to be proven are central prerequisites for submitting admissible evidence motions in court proceedings. Compliance with these requirements is crucial for the success of evidence-taking and thus for the enforcement of rights in both civil and criminal proceedings.
Sources:
- Code of Civil Procedure (ZPO)
- Code of Criminal Procedure (StPO)
- Federal Court of Justice (BGH): Judgments and Decisions, especially IV ZR 24/95 and VI ZR 243/05
- Overview of Case Law on the Law of Evidence
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Frequently Asked Questions
What are the requirements for the admissibility of an exploratory evidence motion?
An exploratory evidence motion is generally inadmissible if it aims to provide the applicant with the foundation for a concrete assertion only through the requested gathering of evidence. For a motion not to be regarded as inadmissible exploration, certain legal requirements must be met. The applicant must first make a concrete, substantiated statement of fact that can be confirmed or refuted by the named evidence. General formulations, assumptions, or mere conjectures are not sufficient. In addition, the motion should describe the subject of evidence (i.e., the disputed fact) as precisely as possible. If there is uncertainty about the exact facts to be proven, there is a risk that the court will reject the motion as an exploratory motion. It is also important that the court, pursuant to § 244 para. 3 StPO or the corresponding provisions of civil law, conducts a proportionality review, particularly in light of the individual’s right to informational self-determination.
In which types of proceedings are exploratory evidence motions especially problematic?
Exploratory evidence motions are a particularly frequent problem in civil proceedings—here under the application of the Code of Civil Procedure (ZPO)—and in criminal proceedings. In civil proceedings, this results from the principle of party disposition (disposition and presentation principle), under which the parties themselves must specify and prove the facts relevant to the court’s decision. In criminal proceedings, they set a boundary pursuant to § 244 paras. 2 and 3 StPO, as the court is not obliged to take evidence that is based purely on speculation. Similar problems are also found in administrative proceedings under the VwGO, since the court fundamentally investigates the facts ex officio (§ 86 VwGO), but exploratory motions may likewise be rejected if they are not sufficiently specified.
What are the consequences for the party bearing the burden of proof if an exploratory evidence motion is rejected?
If an exploratory evidence motion is rejected by the court, the burden of proof remains as it is. The party that bears the burden of proof for the asserted fact cannot gain any procedural advantage from submitting and having an exploratory evidence motion rejected. Rather, the risk is that the court views the party’s submission as insufficiently substantiated and regards the required proof as not provided. This may directly lead to dismissal of the claim or to losing the case. The party can only attempt to specify their submission and make a new, admissible evidence motion, provided the proceedings still allow for this.
How does an admissible evidence motion differ from an exploratory evidence motion?
An admissible evidence motion is distinguished from an exploratory evidence motion primarily by the specification and substantiation of the fact to be proven. While the exploratory evidence motion aims first to find or deduce a specific fact through the means of evidence, the admissible evidence motion accurately designates the fact to be proven beforehand. It contains the specific subject of evidence, which directly relates to the subject matter of the proceedings, and a specific, identified piece of evidence. If these criteria are met, there is a good chance that the motion will be accepted by the court and the evidence will be taken.
What role does the right to evidence play in connection with exploratory evidence motions?
The right to evidence is protected in procedural law (e.g., Art. 103 para. 1 GG, right to be heard) and requires that parties are allowed to support their claims by gathering evidence. However, this right finds its limit where it amounts to inadmissible exploration. An exploratory motion exceeds the scope of the right to be heard, as it does not seek to prove an already specifically asserted and disputed fact, but rather to first uncover a potential fact. Therefore, courts must carefully balance the right to evidence so that it is neither hollowed out nor the proceedings burdened by unspecific and potentially abusive motions. In practice, this balancing is often the subject of disputes in court proceedings.
What options does a party have after their exploratory evidence motion has been rejected?
After an exploratory evidence motion has been rejected, the party generally has the option to specify their submission and—if necessary, after further clarification of the facts or examination of documents—to submit a new, sufficiently substantiated evidence motion. As long as the oral hearing has not been closed (§ 296a ZPO), this is usually possible. In some cases, an appeal or complaint against the procedural decision may also be considered, especially if the party believes the court wrongly classified the motion as an exploratory evidence motion. In proceedings before the highest courts, a constitutional complaint remains as the last resort if the right to be heard has been violated.
