So I'm asking this in the setting of a criminal trial, but I'd also be interested to hear about the treatment of the same aspect in a civil trial.

Assume Danny (D) finds himself accused of some wrongdoing. Maybe, to the layman, D is "the kind of guy who would to this kind of thing", but the primary reason comes from one Henry W (HW) - in front of the police, HW has testified that D has committed some crime.

For example,

HW told the police: "At dusk, I saw D sneak up to the back door of the factory building, carefully trying to stay in the shadows, open the door with some kind of tool, sneak inside; later, I saw him leave the building with a couple of expensive tools in his hands!"

However, unbeknownst to HW, D has been able to secure some unbiased, credible, and convincing evidence that exonerates him, or at least discredits the core of HW's claims.

For Example:

D has been able to secure a copy of a CCTV camera that shows the back door in question - the pictures show him causally walk up to the open door, peek his head in, maybe yell "Anyone there? You guys know your back door is open?!", and, after waiting a short time, walk away through the lights of the street lamps, obviously empty-handed.

In the next court session, HW will be heard. It is to be expected that he will repeat what he said to the police.

D and his attorney can now act in a variety of ways:

  1. Try to preempt the hearing of HW, offering their evidence, so as to prevent HW to testify in a way that will cause him trouble.
  2. Wait out the hearing of HW, then offer their evidence, with HW now likely facing consequences for his untrue testimony.
  3. Wait out the hearing of HW, but cross-examine HW, giving him any opportunity to tell details which D knows aren't true, maybe more than what HW would have claimed in the previous option, and give HW any freedom to to embellish his story. Then, they request that HW be put under oath[1], leaving HW to face consequences of lying to court, worse than in the previous option, and while under oath.

What I'd like to know is: While option #2 is probably the most "neutral" way D and his attorney can go, is there any rule, formal or informal, that would compel them to lean towards option #1 or would forbid them to use option #3?

[1] I'm asking (also) for Germany, where witnesses are only put under oath on request by either side after testimony

  • 1
    If you want to hear a witness or not is a matter of strategy, not formal rules. The rules establish how you can prevent or compell a witness statement, but legal strategy is off topic. As for Germany: The questioning is done by the judge, not your lawyer, anyway.
    – Trish
    Commented Aug 31, 2023 at 20:23
  • 5
    Your assumption that HW would face any consequences for his testimony regardless of how it played out in court is highly improbable. Witnesses that are doing their best make mistakes in good faith all the time. It is entirely possible for HW to honestly believe what he is testifying to and to be mistaken. People make mistaken identifications all the time, they have different angles on things, patterns of light and shadow look like expensive tools if the observer expects someone to be carrying expensive tools. Commented Aug 31, 2023 at 20:38

3 Answers 3


TV has lied to you about criminal trials

There is no secret evidence or sudden "gotcha" moment

How a criminal trial is to be conducted is spelled out in the appropriately named Criminal Procedure Act; the relevant parts are essentially the same under the Civil Procedure Act, which covers civil trials.

s143 sets out what the defence response to the prosecution's notice must contain. Among these are "the nature of the accused person's defence" and "the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution's notice under section 142) and with which the accused person intends to take issue". This would include providing a copy of the CCTV footage and the testimony as to its veracity (i.e. whose is it, how did the defence get it, how do we know it is what it purports to be etc.). It's not enough to have video, I have video of the Death Star destroying Alderaan, but that's not evidence of genocide.

The point is this video isn't going to be a surprise to the prosecution, and they may well introduce evidence to undermine its credibility. The jury will be given the evidence of HW's testimony and why it's a load of crap, and the evidence of the video and why that's a load of crap, and decide what weight to give each.

Contested facts are not the exception in a trial; they are the norm. If everyone agreed on the facts, we wouldn't need to have a trial.

The existence or contents of the video will not be disclosed to HW (or any other eyewitness); that would contaminate his evidence. It will be a tactical decision of the prosecution whether and when to put HW on the stand and a tactical decision of the defence whether or when to introduce the video.

There will be no consequences for HW. He remembers events the way he remembers them, and testifying to that is not perjury.

  • 1
    Could HW face consequences if he deliberately lied in order to frame D? I imagine this would be difficult to prove, though.
    – Barmar
    Commented Sep 1, 2023 at 14:09
  • @Barmar yes, there are a number of charges that might be applicable for deliberate deception
    – Dale M
    Commented Sep 1, 2023 at 20:31
  • "If everyone agreed on the facts, we wouldn't need to have a trial." Rhetorical flourish, or is this strictly true in NSW?
    – fectin
    Commented Sep 1, 2023 at 22:12
  • 2
    @fectin: To my understanding, this is at least true in most if not all common law jurisdictions. I somewhat doubt it would be true in a civil law jurisdiction, but I have very little knowledge of those. Most common law jurisdictions have some kind of pretrial motion that lets you say "there are no facts in dispute, so judge, please just rule on the law so everybody can go home without an expensive trial."
    – Kevin
    Commented Sep 1, 2023 at 22:34
  • @Kevin the parties can agree on the law , too. In a civil case that’s called a negotiated settlement. In a criminal case it’s called a guilty plea: the judge still needs to impose the sentence (which might also be agreed by the parties).
    – Dale M
    Commented Sep 2, 2023 at 0:02

D's attorney will need to disclose the video, since it's clear they will offer it as evidence. It is possible your jurisdiction might treat this as rebuttal evidence and not require disclosure, but it's in everyone's interest to get it out early. At this point, it's unlikely that HW will be called and likely that the case will be dropped outside of court. D will like this unless they enjoy paying their attorney by the hour, and it isn't an episode of Boston Legal so courtroom drama isn't important. If the case were not dropped, one would expect the video to be introduced in a pre-trial motion for dismissal or summary judgement.

Perjury charges for HW's testimony or signed statement would be a separate matter.

  • In U.S. criminal cases there are disclosure requirements for the prosecution, but only minimal ones for the defense. In civil cases there are mutual disclosure requirements but impeachment evidence can often be introduced without prior disclosure.
    – ohwilleke
    Commented Sep 2, 2023 at 23:16

As you're asking specifically about Germany, here's a link to a report about a criminal case in which a police officer filed a complaint about a person (p) who allegedly attacked him near a Corona demonstration.

During the criminal case against P, the police officer testified and lied, saying P attacked him. Another police officer confirmed the story in court.

P's attorney showed a video, which he had from the beginning, showing that the police officers were lying. He showed the video late in the proceedings exactly to get your case #3.

P was acquitted and the judge apparently accepted this move.

All in German:

https://taz.de/Angeblicher-Angriff-auf-Beamte/!5895590/ Paywall: https://www.zeit.de/gesellschaft/2022-11/polizeigewalt-hamburg-prozess-corona-protest https://kontrapolis.info/8826/

Side information: wrongly testifying in court is a crime whether you're under oath or not in Germany.

  • 1
    In a civil process it's §282 ZPO that demands to hand the other side all evidence - pre trial and without exceptions.
    – Trish
    Commented Sep 3, 2023 at 7:36
  • 1
    in a criminal trial: § 166, § 219 ZPO regulate when the accused should request items to be entered into evidence and that the prosecution is to be informed. §244 and § 246 ZPO regulates discovery and under which conditions you may bring new evidence during trial - the later of them means usually it results in a delay so the other side may prepare for the new evidence.
    – Trish
    Commented Sep 3, 2023 at 7:40
  • @Trish all articles I can find, even a short mention on LTO contradict your claim. All sources say, the video was presented at the last day of the trials. Afaik, no judge and no Staatsanwalt would play along with having a witness incriminate themselves if they have a video of the case. Do you have any source for your claim or is it just your interpretation that the judge would not have accepted the evidence if presented that late and rather convicted an innocent?
    – DonQuiKong
    Commented Sep 3, 2023 at 14:08
  • Also, 246 (1) ZPO explicitly states that evidence may be entered at any time by the accused.
    – DonQuiKong
    Commented Sep 3, 2023 at 14:10
  • I am not saying that. I say that if the prosecution had wanted rebuttal, they could request to inspect the material to refute it with extra time - 246(2) SPO (I mistakenly typed ZPO vor ZivilProzessordnung where I linked to the SPO - Strafprozessordnung) - By the defense bringing it on the "last day" of trial, the prosecution can gain quite some extra time.
    – Trish
    Commented Sep 3, 2023 at 17:37

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