In the context of a compliance investigation on the suspicion of white collar crime, the question often arises as to whether, and to what extent, the company concerned must cooperate with the state investigation authorities and encourage employees to testify. A subsequent question is whether a witness is required to prepare for an appearance in criminal proceedings.

According to the Code of Criminal Procedure, witnesses must appear before the court on the date of their appearance. They are required to testify unless an exception is permitted under statute (ie, the right of a witness to refuse to testify). Even if a witness has the right to refuse to testify, he or she is still required to appear in court.

The code stipulates that it is the general duty of a citizen to appear in court. This duty must be fulfilled despite any associated inconvenience - for example, professional commitments or loss of time. However, it is questionable whether witnesses are obliged to prepare for their appearance beyond the duty to appear in court and testify. This question is of practical relevance if the incident dates far back or if many people were involved in the matter, with each person - including the witness - having to oversee only one aspect of the case. In this situation, is the witness obliged to seek out any documents that he or she may still possess to see whether anything is applicable to the hearing? Beyond that, is the witness possibly required to attempt to procure further information or documents which he or she no longer possess?

There is a general consensus that witnesses should prepare for a hearing where they will be questioned on observations made when acting in an official capacity. Such witnesses (eg, police officers), should prepare for their appearance - for instance, by inspecting any available files or other documents.

Otherwise, the general view is that witnesses are not obliged to prepare for their appearance. This is mainly because the witness cannot anticipate with certainty the questions that will be asked, so that even if the witness took due care, he or she would be unable to comprehensively prepare for the hearing. Thus, witnesses are not required, in principle, to retrieve or inspect documents which might be relevant (eg, detailed balance sheets) for preparation purposes, or to carry out inquiries regarding information which others may still have in their possession. The obligation to testify is limited to the knowledge that the witness has gained from his or her own observations and that is still remembered. In particular, the witness is not obliged to inquire about or procure information regarding circumstances which could have been the subject of third-party observations.

Each witness must nevertheless endeavour to provide complete and accurate information. The criminal courts provide assistance to witnesses, in particular regarding written documents in court files which relate to the facts of the matter at that time (eg, appointment diaries, meeting minutes, contracts or accounting documents). This assistance can often be used to refresh the witness's memory which may have faded between the actual events and the hearing. The witness is also required to make use of any assistance which is presented or read out in court to refresh his or her memory.

It is not uncommon, particularly when assistance is provided, for a witness to remember documents that he or she may still have which would help to answer questions relevant to the proceedings or to present events more accurately. As witnesses are required to speak the truth to the best of their knowledge and belief, they are expected to mention such possibilities on their own initiative. If a witness tells the court that he or she has no documentation which could provide further clarification, the witness could end up facing criminal charges of making a false statement (under oath or not under oath). If there are documents relevant to the hearing, then the witness should bring them along, even if they have not been used to prepare for the court appearance, in order to avoid another hearing.

For further information on this topic please contact Markus Schoner at CMS Hasche Sigle by telephone (+49 40 37 63 00), fax (+49 40 37 63 040 600) or email (markus.schoener@cms-hs.com).

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