In the following seminar paper I will deal with the body search and physical examination of the accused, the privilege against self-incrimination, and the consequences of illegally obtained evidence in German Criminal Law.
In the main part, I will start with the presentation of the sections in the German Code of Criminal Procedure (GCCP) which lay down the provisions concerning the body search and the physical examination of the suspect in criminal proceedings. This will be followed by the requirements the fore-mentioned sections list in order to lawfully obtain evidence. Afterwards I will show different examples that fall under the one or the other and will so develop the differences between these two norms.
Then, I will move on with the privilege against self-incrimination. I will show how this privilege is guaranteed in German Law and if it is violated with regard to body search and physical examination of the accused.
In additional to this, I will also deal with the consequences of illegally obtained evidence with regard to such searches and examinations of the suspect.
In the end, a brief conclusion shall sum up the fore-mentioned findings and ideas.
Table of Contents
I. Introduction
II. Main Part
1. Body Search and Physical Examination of the Accused
a) Body Search of the Accused
b) Physical Examination of the Accused
aa) Physical Examination of the Accused
bb) Intrusion into the Accused’s Body
2. The Privilege against Self-Incrimination
3. The Consequences of Illegally Obtained Evidence
III. Conclusion
Research Objective and Key Themes
This paper examines the legal frameworks governing body searches and physical examinations of the accused within the German criminal justice system, specifically analyzing the interplay between state investigative powers, the privilege against self-incrimination, and the admissibility of evidence obtained through controversial methods.
- Legal requirements for body searches and physical examinations under the German Code of Criminal Procedure (GCCP).
- The distinction between the freedom to remain silent and the freedom not to cooperate.
- The application of the privilege against self-incrimination to intrusive investigative measures.
- The legal debate surrounding the use of emetics in cases of "body-stuffing."
- The exclusionary rules and balancing interests regarding illegally obtained evidence in court.
Excerpt from the Book
bb) Intrusion into the Accused’s Body
This physical examination of the accused must be distinguished from the intrusion into the suspect’s body. Under Section 81 a (1) 2, (2) GCCP, the admissibility of this method requires an (1) intrusion into the body of the (2) accused which must be (3) ordered by the right authority and carried out (4) in accordance with the rules of medical science (lege artis) by a (5) physician (6) for the purpose of examination, (7) provided no detriment for his health is to be expected.
The intrusion into the suspect’s body is a specification of the physical examination and means the taking of a blood sample – as explicitly laid down in section 81 a (1) 2 GCCP –, the extraction of spinal cord fluid, semen and urine, the supply of medicine and the exposition to x-rays or any other injuries of the body surface.
If a person is suspected to have driven under the influence of alcohol, the police can measure his alcohol level. In Germany, when having stopped a suspect and being suspicious about his driving ability with regard to alcohol, the police officers would first offer him a tube in which he shall blow. This tube is a breath alcohol analyser and measures the alcohol level in the suspect’s breath.
Summary of Chapters
I. Introduction: Outlines the scope of the paper, detailing the intention to analyze German criminal procedural law regarding searches, examinations, and the protection of the accused.
II. Main Part: Provides a legal analysis of Sections 102 and 81a GCCP, explores the privilege against self-incrimination, and investigates the legal consequences of gathering evidence through invasive techniques like emetics.
III. Conclusion: Summarizes the discussed legal challenges and emphasizes that these topics represent some of the most controversial aspects of German criminal law today.
Keywords
German Criminal Law, Code of Criminal Procedure, Body Search, Physical Examination, Privilege Against Self-Incrimination, Exclusionary Rule, Emetics, Body-stuffing, Body-packing, Suspect Rights, Evidence, Forensic Medicine, Human Dignity, Criminal Procedure.
Frequently Asked Questions
What is the primary subject of this paper?
The paper explores the legal regulations concerning body searches and physical examinations of the accused in German criminal law and how these measures relate to the privilege against self-incrimination and the admissibility of evidence.
What are the central themes discussed?
The central themes include the requirements for lawful body searches, the distinction between active and passive cooperation, and the legal debate surrounding evidence obtained through body intrusions.
What is the main research objective?
The objective is to provide a comprehensive overview of how German law balances the state's interest in successful criminal prosecution with the fundamental rights of the accused during investigative procedures.
Which scientific methods are applied?
The work utilizes a legal-doctrinal approach, analyzing statutes from the German Code of Criminal Procedure (GCCP), constitutional principles, and relevant judicial rulings and scholarly literature.
What topics are covered in the main body?
The main body breaks down the procedures of body searches and physical examinations, specifically distinguishing between physical inspections and bodily intrusions, while also addressing the limits imposed by the privilege against self-incrimination.
Which keywords characterize this work?
Key terms include German Criminal Law, body search, physical examination, self-incrimination, exclusionary rule, body-stuffing, and evidence law.
How is the distinction between "body-stuffing" and "body-packing" legally significant?
The author distinguishes them because excorporation via emetics is considered a potential measure for body-stuffing on the street, whereas body-packing involves cross-border trafficking where this method is generally not applicable.
Does the use of a lie detector violate the privilege against self-incrimination?
Yes, the author argues that the use of a lie detector inhibits the suspect's free will and forces an insight into their intimate thoughts, thereby violating the freedom to remain silent.
- Quote paper
- Dr. Stefanie M. Bausch (Author), 2004, Body Search and Physical Examination of the Accused, the Privilege against Self-Incrimination and the Consequences of Illegally Obtained Evidence in German Criminal Law, Munich, GRIN Verlag, https://www.grin.com/document/22919
