hearsay

noun · Zeugnis vom Hörensagen

Hearsay is the Zeugnis vom Hörensagen, the report of what a third person said. The system point is the reversal of the common-law picture: German law knows no exclusionary rule for it; the Zeuge vom Hörensagen is an admissible means of evidence, weighed freely, with a reduced value and heightened scrutiny.

Which translation, when

zulässig, frei gewürdigtthe German rule: a Zeuge vom Hörensagen reports his own perception of what a third person told him, so his examination does not offend the immediacy principle, and there is no rule of evidence excluding him; in civil procedure the offer of such a witness is not unfit as evidence, his account counts as an indication, and the preference for the more proximate means of evidence works inside the free evaluation of § 286 ZPO, not as a bar.

geminderter Wert, anderes Systemthe contrast: the value of the mediated account is reduced and the constitutional case law demands particularly careful evaluation; in criminal procedure the settled case law lets findings that carry a conviction rest on such testimony only where weighty further indications outside the account confirm it, § 261 StPO framing the free evaluation; the common law instead starts from an exclusionary hearsay rule with exceptions, so importing the English inadmissibility into a German text, or the German admissibility into an English one, misstates the system.

Why

Hearsay is rendered Zeugnis vom Hörensagen, and the person who gives it is the Zeuge vom Hörensagen, the witness who reports what a third person told him. The translation point is that the two systems start from opposite defaults. The common law treats hearsay as presumptively inadmissible and then carves exceptions. German law has no such exclusionary rule: the witness reports his own perception, namely the conversation, so the immediacy principle is not offended, and his examination is admissible in civil and in criminal procedure alike. What German law does instead is discount and scrutinise. The account is mediated, so its value is reduced; the constitutional case law demands particularly careful evaluation, and in criminal procedure the settled case law allows findings that carry a conviction to rest on such testimony only where weighty further indications outside the account confirm it. In civil procedure the courts hold that an offer of a Zeuge vom Hörensagen is not unfit as evidence; the account is weighed as an indication within the free evaluation of § 286 ZPO, and the party who could name the more proximate witness but does not will see that counted against the weight. A translation therefore must not carry the English inadmissibility into a German text, for instance by rendering a hearsay objection as if a German court had to exclude the testimony, and must not carry the German admissibility into an English one. So the safe rendering names the figure, Zeugnis or Zeuge vom Hörensagen, and keeps the systems apart: exclusion with exceptions on one side, free but sceptical evaluation on the other.

Typical mistakes

German law has no exclusionary hearsay rule; the Zeuge vom Hörensagen is admissible and weighed freely, so importing the English inadmissibility into a German text misstates the system.
The value of the mediated account is reduced and the evaluation must be particularly careful, in criminal procedure with confirmation by weighty further indications, so admissible does not mean full weight.
The preference for the more proximate means of evidence works inside the free evaluation, § 286 ZPO, not as a bar to the offer.

What matters

Rendering a passage on second-hand testimony, the translation should use Zeugnis vom Hörensagen for the account and Zeuge vom Hörensagen for the witness, keep the German default of admissibility with sceptical free evaluation, and leave the exclusionary rule to the common-law side of the text.

Authority

§ 286 ZPO
§ 261 StPO

What the machine misses

Machine output renders hearsay as Hörensagen and tends to carry the common-law frame with it, so a German text reads as if the testimony were inadmissible. That reverses the German default, admissibility with free but sceptical evaluation under § 286 ZPO and § 261 StPO, reduced weight, and in criminal procedure confirmation by further indications. The rendering imports an exclusionary rule the system does not have.

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Examples

hearsay evidence	Zeugnis vom Hörensagen
a hearsay witness	ein Zeuge vom Hörensagen
the statement rests on hearsay	die Aussage beruht auf Hörensagen
testimony from direct perception	eine Aussage aus eigener Wahrnehmung

More notes on these sections

evidence Beweis

guilty plea Geständnis

standard of proof Beweismaß