Thomas Weigend | University of Cologne (original) (raw)
Papers by Thomas Weigend
Do Exclusionary Rules Ensure a Fair Trial?, 2019
German criminal procedure law places great emphasis upon judgements made pursuant to the "substan... more German criminal procedure law places great emphasis upon judgements made pursuant to the "substantive truth." Therefore, exclusion of evidence tends to be an anomaly as it compels the trial court to disregard certain evidence, which implies that the court must base its judgement on something less than the whole truth. German law does provide for the exclusion of evidence in some situations, but its effect is limited to preventing the trial court from explicitly relying on the inadmissible evidence as a basis for the judgement. That said, in most cases the judges nevertheless remain aware of the excluded evidence. Under German law there is absolute protection of conversations between individuals in intimate relationships as a result of the protection of core privacy. If such conversations are captured and stored during surveillance they cannot be used unless related to past or future crimes. If evidence is obtained by violating this law, the approach of most German courts is to weigh the individual privacy interests against the interests of the justice system in having access to all available information. If the violation was intentional, however, the evidence is typically excluded. Section 136a of the German Code of Criminal Procedure provides that statements obtained through the use of prohibited means of interrogation, such as force, threats, and illicit promises, cannot be used as evidence.
Festschrift für Claus Roxin zum, 2001
Wer wüßte besser als der verehrte Jubilar, daß Strafrecht keine nationale Angelegenheit (mehr) is... more Wer wüßte besser als der verehrte Jubilar, daß Strafrecht keine nationale Angelegenheit (mehr) ist? Er selbst trägt unermüdlich durch Vortrags-und Kongreßreisen dazu bei, die Fragestellungen und Ergebnisse der deutschen Strafrechtswissenschaft international zu ...
Grundlagen und Konzepte des Strafrechts
Juridica International
The article deals with the relevance of truth in criminal procedure and criminal law. In criminal... more The article deals with the relevance of truth in criminal procedure and criminal law. In criminal procedure, it is important to maintain an honest search for the truth as a distinctive feature of the proceedings. One should therefore be sceptical of shortcuts to justice that rely exclusively on the defendant’s consent as the basis for the court’s judgement. Criminal law has wisely refrained from making lies punishable except in special contexts. Although the ease of spreading lies via the internet leads to extended risks, especially for the political process, criminal prohibition of spreading ‘fake news’ is not advisable, because these efforts tend to be overly broad and promote state censorship.
Journal of International Criminal Justice, Nov 1, 2008
ABSTRACT The concept of corporate criminal responsibility has long been accepted in common law ju... more ABSTRACT The concept of corporate criminal responsibility has long been accepted in common law jurisdictions and has more recently spread to several other national criminal law systems. Germany is one of a few hold-outs limiting criminal responsibility to natural persons, although financial sanctions can be imposed on a corporation when one of its officers has acted criminally on behalf of the corporation. Corporate criminal responsibility can be based on transferring the corporate officer's responsibility to the corporation, or alternatively, on finding fault with the legal person's internal organization. Neither approach is completely convincing in theoretical terms. More importantly, introducing full corporate criminal responsibility requires a re-definition of what constitutes a criminal act as well as the concept of criminal culpability. The author cautions against taking this step too quickly because it might well change the specific nature of criminal law.
Depaul Law Review, 1978
The difficult theoretical issue of whether criminal liability should be imposed for acts that fai... more The difficult theoretical issue of whether criminal liability should be imposed for acts that fail to result in completed crimes only because of extrinsic circumstances has gained new practical significance in the context of traffic in drugs erroneously believed to be illegal. In this Article, Dr. Weigend examines the complex law of impossibility in criminal attempts, using as a starting point the recent Fifth Circuit decision in United States v. Oviedo. Dr. Weigend traces the development of the law of impossibility from its beginnings in the British system to its present form in the United States, and concludes with his own model, which he applies to a number of classical impossibility situations.
Goltdammer S Archiv Fur Strafrecht, 2007
Zeitschrift Fur Die Gesamte Strafrechtswissenschaft, 2004
Kriminologisches Journal, 1984
Boston College International and Comparative Law Review, 1995
use of arrest and pretrial detention, broad defense discovery rights, and rules encouraging defen... more use of arrest and pretrial detention, broad defense discovery rights, and rules encouraging defendants to testifY before and at trial). 8 See Deutsches Richtergesetz (German Judges' Statute), I BUNDESGESETZBLATT 713, § 5b (1972) [hereinafter GJS).
4. Deutsch-französische Strafrechtstagung / 4èmes Rencontres du droit pénal franco-allemandes, 2014
Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie, 2011
Israel Law Review, 1991
Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the furt... more Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the further question “how much?”. The bulk of this statement will be devoted to this second question, but I will first explain why there is no absolute answer to the issue of judicial discretion in sentencing. Most legal systems grant the sentencing judge (practically) unlimited freedom to choose among a vast array of dispositions in any given case. Legal standards guiding their decision-making are typically non-directive, vague, or non-existent. The result, not unexpectedly, is a great disparity in sentencing outcomes. This state of affairs can best be explained in terms of unquestioned tradition and judicial self-image.
Streitbare Strafrechtswissenschaft, 2000
Netherlands Journal of Legal Philosophy, 2013
Zeitschrift Fur Die Gesamte Strafrechtswissenschaft, 1993
Do Exclusionary Rules Ensure a Fair Trial?, 2019
German criminal procedure law places great emphasis upon judgements made pursuant to the "substan... more German criminal procedure law places great emphasis upon judgements made pursuant to the "substantive truth." Therefore, exclusion of evidence tends to be an anomaly as it compels the trial court to disregard certain evidence, which implies that the court must base its judgement on something less than the whole truth. German law does provide for the exclusion of evidence in some situations, but its effect is limited to preventing the trial court from explicitly relying on the inadmissible evidence as a basis for the judgement. That said, in most cases the judges nevertheless remain aware of the excluded evidence. Under German law there is absolute protection of conversations between individuals in intimate relationships as a result of the protection of core privacy. If such conversations are captured and stored during surveillance they cannot be used unless related to past or future crimes. If evidence is obtained by violating this law, the approach of most German courts is to weigh the individual privacy interests against the interests of the justice system in having access to all available information. If the violation was intentional, however, the evidence is typically excluded. Section 136a of the German Code of Criminal Procedure provides that statements obtained through the use of prohibited means of interrogation, such as force, threats, and illicit promises, cannot be used as evidence.
Festschrift für Claus Roxin zum, 2001
Wer wüßte besser als der verehrte Jubilar, daß Strafrecht keine nationale Angelegenheit (mehr) is... more Wer wüßte besser als der verehrte Jubilar, daß Strafrecht keine nationale Angelegenheit (mehr) ist? Er selbst trägt unermüdlich durch Vortrags-und Kongreßreisen dazu bei, die Fragestellungen und Ergebnisse der deutschen Strafrechtswissenschaft international zu ...
Grundlagen und Konzepte des Strafrechts
Juridica International
The article deals with the relevance of truth in criminal procedure and criminal law. In criminal... more The article deals with the relevance of truth in criminal procedure and criminal law. In criminal procedure, it is important to maintain an honest search for the truth as a distinctive feature of the proceedings. One should therefore be sceptical of shortcuts to justice that rely exclusively on the defendant’s consent as the basis for the court’s judgement. Criminal law has wisely refrained from making lies punishable except in special contexts. Although the ease of spreading lies via the internet leads to extended risks, especially for the political process, criminal prohibition of spreading ‘fake news’ is not advisable, because these efforts tend to be overly broad and promote state censorship.
Journal of International Criminal Justice, Nov 1, 2008
ABSTRACT The concept of corporate criminal responsibility has long been accepted in common law ju... more ABSTRACT The concept of corporate criminal responsibility has long been accepted in common law jurisdictions and has more recently spread to several other national criminal law systems. Germany is one of a few hold-outs limiting criminal responsibility to natural persons, although financial sanctions can be imposed on a corporation when one of its officers has acted criminally on behalf of the corporation. Corporate criminal responsibility can be based on transferring the corporate officer's responsibility to the corporation, or alternatively, on finding fault with the legal person's internal organization. Neither approach is completely convincing in theoretical terms. More importantly, introducing full corporate criminal responsibility requires a re-definition of what constitutes a criminal act as well as the concept of criminal culpability. The author cautions against taking this step too quickly because it might well change the specific nature of criminal law.
Depaul Law Review, 1978
The difficult theoretical issue of whether criminal liability should be imposed for acts that fai... more The difficult theoretical issue of whether criminal liability should be imposed for acts that fail to result in completed crimes only because of extrinsic circumstances has gained new practical significance in the context of traffic in drugs erroneously believed to be illegal. In this Article, Dr. Weigend examines the complex law of impossibility in criminal attempts, using as a starting point the recent Fifth Circuit decision in United States v. Oviedo. Dr. Weigend traces the development of the law of impossibility from its beginnings in the British system to its present form in the United States, and concludes with his own model, which he applies to a number of classical impossibility situations.
Goltdammer S Archiv Fur Strafrecht, 2007
Zeitschrift Fur Die Gesamte Strafrechtswissenschaft, 2004
Kriminologisches Journal, 1984
Boston College International and Comparative Law Review, 1995
use of arrest and pretrial detention, broad defense discovery rights, and rules encouraging defen... more use of arrest and pretrial detention, broad defense discovery rights, and rules encouraging defendants to testifY before and at trial). 8 See Deutsches Richtergesetz (German Judges' Statute), I BUNDESGESETZBLATT 713, § 5b (1972) [hereinafter GJS).
4. Deutsch-französische Strafrechtstagung / 4èmes Rencontres du droit pénal franco-allemandes, 2014
Gegenwärtige Strafbegründungen im Lichte von Hegels Straftheorie, 2011
Israel Law Review, 1991
Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the furt... more Should judges have discretion in sentencing? The answer cannot be “yes” or “no” but only the further question “how much?”. The bulk of this statement will be devoted to this second question, but I will first explain why there is no absolute answer to the issue of judicial discretion in sentencing. Most legal systems grant the sentencing judge (practically) unlimited freedom to choose among a vast array of dispositions in any given case. Legal standards guiding their decision-making are typically non-directive, vague, or non-existent. The result, not unexpectedly, is a great disparity in sentencing outcomes. This state of affairs can best be explained in terms of unquestioned tradition and judicial self-image.
Streitbare Strafrechtswissenschaft, 2000
Netherlands Journal of Legal Philosophy, 2013
Zeitschrift Fur Die Gesamte Strafrechtswissenschaft, 1993