Forensic linguistics in German criminal procedure

The latest edition of Language and Law/Linguagem e Direito is a special issue arising from a one day symposium looking at the way expert evidence is handled in different jurisdictions.

It contains an article by Sabine Ehrhardt of the Bundeskriminalamt looking at how forensic linguistic evidence and experts are handled in the German criminal court system. Forensic Linguistics in German law enforcement.

The main emphasis is on a case where forensic linguistics evidence was required to analyse text messages sent to the victim’s mother before and after the victim’s disappearance, answering the question: no body has been found, but did her husband kill her and fake the circumstances of her disappearance? The case was based on circumstantial evidence, of which the text messages were only part.

It was striking but perhaps not surprising that in the 200-page summary of the judgment, the judge seems to have completely misunderstood some of the expert’s arguments. The article queries whether German lawyers receive enough training in forensic linguistics.

Incidentally, the English of the article was good, but I really dislike the translation of Nebenklägerin – taken straight from Dietl – as joint plaintiff. My suggestion is private co-prosecutor. This refers to the role of the victim’s mother. I know the German “Kläger(in)” is closer to plaintiff than prosecutor, but it seems odd in a criminal court. – Romain has additional private prosecutor, which is better, although it seems to suggest that there are multiple private prosecutors, unless you put commas in.

iDivorce

It’s only a few months before divorce law in England and Wales becomes more sensible. But currently, if you want a fairly quick divorce, the easiest way is to prove that your spouse’s behaviour is ‘unreasonable’, that is, not reasonably acceptable to you.

In times of iSmash, iBroken and so on, it’s not surprising that there is a firm called iDivorce. A judge has recently rapped them over the knuckles for having 28 clients with virtually identical wording with regard to the respondents’ behaviour.

Judge spots clowntown divorce factory using identical wording in 28 petitions (RollOnFriday):

IDivorces’ efficient but unlawful approach had resulted in declarations that were untrue, said The judge. “If I needed to give an example, it would be to say that it would be incredible if all twenty eight respondents ignored the twenty eight petitioners and declined to communicate with them on about two days per week”, he said.

Does Facebook speak German?

The Düsseldorf Higher Regional Court (Oberlandesgericht) had to decide whether German documents served on Facebook in Ireland had to be in English, the local language. Facebook refused to accept documents. The court decided that although an individual who could not speak German might have been able to require a translation, a big company like Facebook certainly had employees who could handle German law and indeed it had a German-language website.

Decision in German.

There is an excellent blog post on the case in English on Peter Bert’s weblog Dispute Resolution in Germany. I don’t think I’ve seen this blog before and it’s very interesting.

Back in December 2019, the headline to my post on that very topic still had a question mark: “Does Facebook speak German?” I had reported on what appeared to be only the second decision by a German court of appeals (Oberlandesgericht) on the issue whether Facebook Ireland, the legal entity operating Facebook’s German activities, is entitled to refuse service of German-language court documents under Article 8 of the European Service Regulation.*

I concluded by saying that the Munich order contributed to what German lawyers love to refer to as “prevailing jurisprudence” (herrschende Rechtsprechung) or “prevailing opinion” (herrschende Meinung): Facebook does understand German. This recent decision of the Court of Appeals in Düsseldorf does confirm this conclusion: The headline of the court’s press release yesterday read “Facebook kann Deutsch” – Facebook does speak German. The court held in a ruling concerning a cost application that Facebook cannot insist on a translation of German documents into English.

I want to comment on some of the terminology choices made here. The first one is to translate Beschluss as order. This is common and I have certainly had to do it in the past because a client insisted. Here is a definition from Juraforum:

Der Beschluss ist zu unterscheiden von anderen gerichtlichen Entscheidungen, zu denen das Urteil und die Verfügung zählen. Er ist vor allem dadurch gekennzeichnet, dass er keinen Tatbestand (Sachverhalt) und keine Entscheidungsgründe enthält. Somit beinhaltet er nur den Tenor der Entscheidung und ist daher in der Praxis bei Richtern sehr beliebt.

To my mind a Beschluss is a decision or ruling. It is a kind of decision. It does not set out the facts or give the reasons for the decision but just contains the operative part of the decision. I don’t think that can be conveyed in one word in English, and the context is not usually such that a detailed definition is needed. Maybe there is some usage of order in English that I have missed?

Another point I would simply disagree with is the use of jurisprudence for Rechtsprechung. Rechtsprechung means court decisions or case law. Jurisprudence means legal theory. I think that to refer to case law as jurisprudence is a gallicism.

German courts holding commercial cases in English

The subject of German judges holding cases in English has raised its ugly head again and is not likely to go away. I’ve mentioned it several times, from 2010 on.

Courts in Paris and Amsterdam as well as Frankfurt would like to take over the international commercial cases so often held in London. Apparently after Brexit UK decisions won’t be automatically effective in the EU and this will slow things down.

Frankfurt am Main Landgericht (Regional Court) has announced this week that from January it will have an English-speaking commercial chamber. From Legal Tribune Online (in German!):

Gerichtsstandort Frankfurt Eng­lisch­spra­chige Kammer für Han­dels­sa­chen ab 2018

Das Landgericht (LG) Frankfurt am Main will ab Januar 2018 eine englischsprachige Kammer für Handelssachen einrichten. Wie das LG am Donnerstag mitteilte, soll Frankfurt damit als Gerichtsstandort gestärkt werden. “Unternehmen sollen die Möglichkeit erhalten, nach ihrer Wahl die Verhandlung auf Englisch durchzuführen”, sagte der Gerichtspräsident Wilhelm Wolf.

I’m not going to analyse this at length, but it is fun reading some of the comments on articles quoted here.

Here is something in English from Bloomberg:

Paris, Frankfurt Try to Grab Lucrative Legal Action From London

“London is stepping into the shadows,” says Roman Poseck, president of the appeals court in Frankfurt, where officials plan to have an English-language panel in place by January. “Frankfurt wants a piece of the pie.”

(Is this what’s known as a mixed metaphor?)

This is all early November 2017 stuff. It was being discussed in March though.

Here is my earlier report on a colleague’s description of the first court hearing in English:

First German court hearing in English

I remember coming to the conclusion that the judges understood each other despite using English, not because of it.

The problem for me, of course, is the language, and above all the gulf between what some judges think is fluent English and what some translators and interpreters think. Especially when it comes to talking about one’s own or a different legal system in a foreign language.

Donoghue v. Stevenson (almost) rides again

Legal Cheek reports that a case called Donoghue v. Stevens was heard in Manchester today:

EXCLUSIVE: There was stifled laughter all round at Manchester County Court this morning when the case of Donoghue v Stevens appeared on the hearing list.

Unfortunately, the case — which is of course very similar in name to the 1932 tort law classic, Donoghue v Stevenson — has nothing to do with a snail or ginger beer, and actually involves a road traffic accident.

Manchester County Court’s hearing list shows that Donoghue v Stevens was heard at 10am this morning before District Judge Davies.

I notice that Otago University anticipated the change of name.

Is there an alternative to the gavel image?

As I have frequently posted – e.g. here -, the image of a gavel is often used in British and German newspapers to illustrate a court judgment. But UK and German judges don’t use gavels. Judges in the USA use them. In the UK, the gavel or hammer is what an auctioneer uses.

I don’t suppose everyone would understand how irritating it is to keep seeing this totally inappropriate image. But one site that does is Inappropriate Gavels. They tweet at @igavels too, and there’s no lack of examples in the press.

It strikes me that the gavel is a good image to use – stock image companies are full of them. alamy reports 28.294 images of gavels. So we need an alternative image.

The only commonly used image for a court decision apart from gavels is the scales of justice, sometimes held by a woman. alamy seems to have 6,937 of those. Maybe we should be encouraging good images of the scales of justice if we are to eradicate the gavel.

Here’s a Guardian article on Inappropriate Gavels, with comments, from the year 2015: Gavel bashing: why banging in court on TV is a serious factual offence.

The Trial – real lawyers and jury on BBC

People in the UK can see this 5-part serial on iPlayer – spoilers ahead.

Last week the BBC put on a program showing a fictitious murder trial but with real barristers, judge, court clerk and expert witnesses and with a jury who were randomly chosen members of the public. It reminded me of Marcel Berlin’s The Law Machine, which I watched ad nauseam with my students years ago.

The first episode I watched I thought not only the defendant and witnesses, but also the jury were actors. Not so! But those jurors were fixated on calling each others’ remarks sexist – the case involved a man charged with murdering his estranged but not quite estranged wife. For example, the relatively coherent older woman juror with experience of social services began to describe the way ‘an abusive man’ may appear amenable at first but gradually becomes domineering and controlling. She was immediately shouted down by two or three male jurors as ‘sexist’. Now this was boring if it was actors, but if it was ‘real’ people it made me worry about how one could speak about abuse and still be heard. However, I have now come to the conclusion that the jury’s remarks were tightly edited and we cannot decide from hearing a short exchange what they were like over several hours. Just like the Big Brother house and other reality TV products, you can’t trust it.

If one wanted to see the law in action, I would strongly recommend the way the barristers appeared. I particularly enjoyed the bit of bickering between them: it seemed authentic and matched my own memories.

It was odd that the judge’s closing speech was not given.

And then, in the last programme, at great length, the ‘true story’ was shown and we saw that the defendant really did kill his wife. I think it was a massive mistake to show what really happened. And above all, the way the jury’s individual votes were shown, showing that it was the women who voted guilty, and the details on how much domestic violence is not reported. An important issue, but we were to be manipulated.

This case should have ended in a not guilty verdict, not guilty for lack of evidence, but it resulted in a hung jury. Of course the jurors knew they were on TV, and that might have influenced their demeanour.

The whole thing has been well taken apart by The Secret Barrister: In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last:

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

As the Secret Barrister says, the jury trial is not about discovering the truth – but the programme behaved as though it was.

Obiter J also has a useful post on the programme, more about legal details and less about criticizing.

Legal research colouring book and EW judicial system

What Color is your C.F.R.? – PDF version free online – is a nice idea, alas very much a USA thing and not very full (yet) (via Open Law Lab, tweeted by Stéphane Cottin). C.F.R. is apparently the Code of Federal Regulations.

For something more British, The Judicial System of England and Wales: a visitor’s guide is another free downloadable PDF, published by the judiciary, probably of use not only to visitors. In particular, it has a great courts diagram. I especially like the photo on the title page:

jud-sys-cover

Randnummer/pinpointing

A colleague recently asked how to translate Randnummer/Randzeichen/Randziffer into English, in three different contexts.

1. The usual query of inexperienced legal translators is ‘What does Rz./Rn. mean?’ The usual translation of Randnummer, Randzeichen or Randziffer is marginal number or margin number. Here’s a discussion on ProZ.

Germans just love marginal numbers, especially in legal contexts and above all in textbooks. This example is from an old copy of Peter Hay, US-Amerikanisches Recht, page 74:

hay IMG_6398

The marginal numbers here are the 172 and 173. Every single paragraph is numbered consecutively through the whole book. So you don’t need to refer to ‘7. a)’ but just to one number.

I think these are a peculiarly German thing, and there are instructions online on how to create them in Microsoft Word, for example, which is not too easy. (Randziffern in Microsoft Word). They are sometimes related to the subject matter and sometimes to the physical location, see the administrative court judgment below and the English case report practice mentioned further below.

Here’s another example of marginal numbers used in a German court case, which I don’t think is very common. The NRW Oberverwaltungsgericht uses these numbers in the right-hand margin to make it easier to refer.

2. Case reports of the CJEU use paragraphs, called para. or paras., a term which needless to say is hard to pin down when you’re looking for it (rather like indent in EU cases). So when a German version of an EU case refers to Randnummer, it is translated into English as para. The number is not in the margin, either.

3. Finally, we really do have marginal numbers/letters or marginal references in English. Some case reports have used not numbers, but letters to make it easier to quote. Google Books has Studying Law, by Simon Askey and Ian McLeod, from which I quote:

Marginal markings and neutral citations
Some series of law reports use marginal markings, in order to make it easier to provide pinpoint citations, while others do not. The original report of Henthorn v Fraser contains no such markings, while the most common system in the 20th century was to provide marginal letters, evenly spaced down each page. The system of marginal letters worked reasonably well, but it was rather cumbersome for true pinpoint citations, which had to take a form such as ‘page 234, letter D, line 3.’ More importantly, this citation would vary from one set of law reports to another, according to the page numbering of the report in question.

I remember barristers lugging cartloads of law reports to the Law Courts, where the court staff would lay out matching volumes from the court library and these would later be cited in argument. Nowadays I suppose at least for newer cases computers replace this.

More on citation in OSCOLA, whence the nice word pinpoint:

A pinpoint is a reference to a particular paragraph of a judgment or page of a report.

and also Latin ‘gadgets‘:

Avoid the use of ‘Latin gadgets’ such as supra, infra, ante, id, op cit, loc cit and contra, which are not widely understood.

The language of the court is German – continued

The language of the court in Germany is German, but also Sorbian.

There is in fact an EU directive which guarantees the right to interpretation and translation in criminal proceedings, when implemented.

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings

Section 187 of the Courts Constitution Act, as cited in my last-but-one post, implements this requirement, but with a loophole which can save the courts ordering a translation.

To quote the translation of the section once more:

An oral translation of the documents or an oral summary of the content of the documents may be substituted for a written translation if the rights of the accused under the law of criminal procedure are thereby safeguarded. As a rule, this can be assumed if the accused has defence counsel.

A colleague, Corinna Schlüter-Ellner, explained the situation in more detail. There is a provision in the Code of Criminal Procedure, section 37 (3) (see below) which makes it necessary to serve an indictment with a translation if the defendant does not speak German. If this is not done, time does not begin to run, because it would be unfair to the other parties. In the case of a Strafbefehl, however, there is only one party, so the court does not risk the service being ineffective without a translation – the defendant has to get a translation if one is needed.

Strafprozeßordnung (StPO)
§ 37 Zustellungsverfahren
(1) Für das Verfahren bei Zustellungen gelten die Vorschriften der Zivilprozeßordnung entsprechend.
(2) Wird die für einen Beteiligten bestimmte Zustellung an mehrere Empfangsberechtigte bewirkt, so richtet sich die Berechnung einer Frist nach der zuletzt bewirkten Zustellung.
(3) Ist einem Prozessbeteiligten gemäß § 187 Absatz 1 und 2 des Gerichtsverfassungsgesetzes eine Übersetzung des Urteils zur Verfügung zu stellen, so ist das Urteil zusammen mit der Übersetzung zuzustellen. Die Zustellung an die übrigen Prozessbeteiligten erfolgt in diesen Fällen gleichzeitig mit der Zustellung nach Satz 1.

Code of Criminal Procedure
Original translation by Brian Duffett and Monika Ebinger
Translation updated by Kathleen Müller-Rostin and Iyamide Mahdi
Coordinating Editor of the Translation Mrs. Mahdi

Section 37
[Procedure Concerning Service]
(1) The provisions of the Code of Civil Procedure shall apply mutatis mutandis to the procedure for service.
(2) Where documents addressed to a participant are served on several persons authorized to receive them, time limits shall be calculated from the date on which the last person was served.
(3) If a translation of the judgment is to be made available to a participant in the proceedings pursuant to section 187 subsections (1) and (2) of the Courts Constitution Act, the judgment shall be served together with the translation. In such cases service on the other participants in the proceedings shall be effected at the same time as service pursuant to the first sentence.

And here’s a nice article (in German) with pictures of the coordinating translator Mrs Mahdi, born in Glasgow.

Comments: we don’t use mutatis mutandis in legislation in the UK nowadays, as a search on the statute database shows (99 results, using Advanced Search), but with the necessary modifications (over 200 results). It usually indicates a translation done by a German lawyer!
addressed to a participant: addressed to one party (participant)?