Investigative measures against privileged witnesses

• Applicant: Professorin Dr. Anne Schneider
• Subject Area: Criminal Law
• Term: from 2014 to 2018
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 250978755

There are many provisions in the Code of Criminal Procedure which contain special rules on investigative measures against privileged witnesses. However, these rules are inconsistent. The subject-matter of the project will thus be a fundamental analysis of all these rules. The fundament for this analysis has already been provided in the first phase of the project. In this phase, the results of legislative theory were used for the purpose of determining criteria for the evaluation of a system of rules. In addition, the interests of the parties affected by these investigative measures have been analysed profoundly.In the second phase of the project, the results that have been found in the first phase shall be applied for the analysis of the lex lata. In order to do so, it is first necessary to identify potential objectives of the legal rules on investigative measures against privileged witnesses, such as protection against bypassing witness privileges, protection of confidential communication or protection of the defendant. Furthermore, the boundaries set by law of a higher order for the drafting of legislation will be examined. Subsequently, the lex lata shall be analysed by taking into account the potential objectives of the system of rules and the legal boundaries. It will be assumed for each potential objective that the lex lata aims at achieving this objective. Based on these assumptions, the lex lata can then be interpreted with regard to each objective. The interpretation will focus on the questions of which privileged witnesses are considered in which investigative measures and how the special rules relate to each other. In the end, the analysis will show whether the lex lata follows a clear objective and, if applicable, which one it is. Considering that the lex lata cannot probably be explained by a single objective, a change of legislation will be proposed. The proposal will make use of the results of the first phase of the project and the analysis that was part of the second phase.In summary, the project is expected to lead to the following results: 1. Analysis of the legal boundaries that the legislator has to consider, 2. Analysis of the special rules on investigative measures against privileged witnesses in the lex lata, 3. A concrete proposal for respective legal rules.

• DFG Programme: Research Grants