The Principle of Adversarial Proceeding - A Justification

• Applicant: Professor Dr. Alexander Morell
• Subject Area: Public Law
• Term: from 2020 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 450620214

German evidence law has been struggling for over 100 years with how to deal with cases where only the party who is not bearing the burden of proof has meaningful evidence. It seemed that the principle of adversarial procedure according to which the parties are responsible for providing evidence in court cannot deal with these cases: the party bearing the burden of proof cannot provide evidence and the party not bearing the burden of proof does not want to provide evidence. Accordingly, it seems, the facts will remain in the dark. The failure to uncover the facts fundamentally questions the legitimacy of the principle of adversarial proceeding.Over the years, many solutions were proposed. Each one would have weakened the authority of the principle of adversarial proceeding: a right of the judge to order the provision of evidence, a general duty of the party not bearing the burden of proof to provide evidence, a general duty of the party not bearing the burden of proof to provide evidence, rendering the requirements of bringing detailed facts more stringent, or pre-trial discovery.On the basis of the law as it stands today, my work uses game theory to show how the judge can evaluate passivity of the party not bearing the burden of proof in a way that is so informative that it effectively introduces the missing piece of evidence into the proceedings. The procedure ensures the legitimacy of the principle of adversarial proceeding and at the same time solves the old practical problem of the "lack of evidence" of the party bearing the burden of proof.

• DFG Programme: Publication Grants