Truth in Criminal Law and Procedure: The Erosion of a Fundamental Value

• Author: Thomas Weigend
• Pages: 28-36

28 JURIDICA INTERNATIONAL 28/2019

Thomas Weigend

Professor, Dr.

Institute for Foreign and International Criminal Law

University of Cologne

Truth in Criminal Law

and Procedure:

The Erosion of a Fundamental Value

1. Introductory remarks

Writing or talking about ‘truth’ is walking through a minefi eld. For thousands of years, philosophers have

debated the question of what truth is, as well as the related question of whether man can know the truth

or can otherwise approach it, or whether he simply creates truth in his mind. It would be presumptuous of

me to try to add anything of substance to this debate. I therefore take a very naive layman’s perspective and

make a few basic everyday assumptions:

– Reality exists. But we cannot be certain that we can recognise it, because man can conceive of the

world around him only within the capacity and limits of his mind. It is only within these limits that

a person can make sense of reality and can make statements about it, but, on the other hand, this

limited view of reality is su cient for inter-human communication.

– People sometimes make statements that, with great probability, do not refl ect reality and that we

can therefore call ‘false’. Such statements may be consciously false (we then call them lies) or may

be made in good faith – that is, the person wrongly believes that his or her words do refl ect reality.

The truth of a statement can thus be distinguished from the honesty of the person who makes it.*1

In what follows, I will address the relevance of truth (and its protection) in criminal procedure and

criminal law. Although these two areas are obviously interconnected in many ways, the signifi cance of truth

di ers greatly between them. The justifi cation (or, perhaps, excuse) for treating them jointly lies in the fact

that the importance of truth seems to be receding in both areas, and there may be good reason for discuss-

ing whether the relevance of protecting the truth and searching for it was overrated in the past, and what

changes may be necessary.

 Although this distinction is clear in theory, one may ask whether criminal law should prohibit the spreading of ‘objective’

falsehood, or whether only those who act dishonestly should be subject to criminal punishment; for discussion of the concept

of ‘false testimony’ in German law, see H.E. Müller, in: K. Miebach (ed.), Münchener Kommentar zum Strafgesetzbuch,

Vol. , rd ed. , §, notes -.

https://doi.org/10.12697/JI.2019.28.04