On the quality of gathering evidence: To what extent are recommendations on interviewing witnesses implemented in courtrooms?

Abstract

Background

Information gathered during court hearings is crucial for legal decision-making in Germany, as it can directly influence the accuracy and fairness of judicial outcomes.

Aim

This study is the first aiming to explore how legal practitioners (i.e. criminal judges, public prosecutors, defence lawyers) gather information in german criminal courts.

Method

A total of 71 witness interviews were live-coded using a predefined schema.

Results

The findings revealed that unproductive utterances—mainly leading (64%) and specific questions (31%)— were more frequent than productive utterances (e.g. open-ended questions and invitations), which made up less than 5%. Additionally, criminal judges used more productive utterances than defence lawyers, but public prosecutors did not follow the same pattern. Unexpectedly, criminal judges also used more unproductive utterances than both public prosecutors and defence lawyers. Judges typically explained the purpose of the interview and legal regulations. However, they did not consistently communicate conversational ground rules and, in some cases, disclosed too much case-related information, which can bias witness statements.

Discussion

This study highlights the need to improve the quality of information gathering through witness interviews conducted by legal practitioners in Germany.

Conclusion

The findings underscore the need for changes in Germany to establish clear standards for evidence-based interviewing, provide comprehensive training, and ensure a systematic framework for recording all interviews. Such changes are essential to improve the quality of information gathered in court and to support fair judicial decision-making.