43 ated in the statute - for example, if someone accused of murder was detected with bloody clothes or weapons, or when a woman suspected of infanticide has previously been observed to be pregnant.’^ The Carolina warned against “unknown” and “paid” witnesses, prohibits hearsay evidence, and instructed the court to closely inspect the witness during the inquest. Furthermore, leading questions were prohibited.’** Clearly, these rules were designed to enhance material truth. The last-mentioned article can also be seen as a safeguard of the accused’s rights - as Kleinheyer has done - in the same way as some other articles, such as the minimum requirements for torture, or article 58, according to which the force of torturewas to be adjusted to the gravity of crime. After the closing of the preliminary phase, the Judge and the laymen {Urteilern, Schöffen) met to fix the sentence in a written form {Urteil). The sentence was then made public at the Endliche Rechtstag. At this final phase of the procedure, no substantive decisions were made. If the accused withdrew his or her confession, it was established by the oath of the two Schöffen who had been present when the confession was made after the torture. If the former confession proved false, the Endliche Rechtstag could be interrupted and a new investigation initiated. The Endliche Rechtstag has been likened to a theatre play-^: the charge, the defendant’s answer and the proof were “played out” in a public spectacle. The Endliche Rechtstag did not take place before the evidence needed for conviction had been gathered at the investigative stage.-** Undoubtedly, the Endliche Rechtstag can be see as a remnant of the medieval public process.-^ Nevertheless, the spectacle continued to have an important general preventive function as well: the public process made the public aware of the law being enforced. But the publicity of the theatre play also had its legimitizing function: the publie could also convince itself of the fact that legal forms were being followed. A confession made in the torture chamber was not enough to produce this legitimizing effect. In the division of the Carolina procedure, the subordination of the medieval element to the modern inquisitorial features is clearly present. The decisionmaking shifted increasingly into the hands of learned jurists, as the VorverSchmidt 1965 pp. 127-129. -■* Ibid. p. 129. Klcinhevcr 1984 p. 24. Schild 1984 p. 122. Ibid. The Carolina’s provision 99 has to do with a Reebtstag where the accused is declared innocent, but this apparently did not usually take place. The idea of the Carolina is that declarations of innocence were not to be made ceremoniallv, but rather at the preliminary, investigative stage. Langbein 1974 pp. 190-191. Ibid. pp. 188-192. Kleinheyer 1984 p. 19. ■■'0 Schild 1984 pp. 136-147.
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