IV. OVERVIEW OF THE CRIMINAL PROCESS FROM COMPARATIVE PERSPECTIVE.

Karolina KREMENS, LL.M. (Wrocław), LL.M. (Ottawa), Ph.D.

Criminal Law I

SCOPE

the role of the judge the parties at the trial trial in presence of the accused influence of the plea position of the defendant at trial disclosure dossier rule of evidence jury determination of guilt and sentencing appeal

OVERVIEW

comparing pre-trial and trial phases

similarities and differences between common and civil-law systems

institutional approach

THE ROLE OF THE JUDGE

a) ADVERSARIAL PROCEDUREjudge as a refereedeciding on issues of procedural character raised

by the partiesrather passive in search for the truth therefore the parties dominate the presentation of

evidencehowever law provides for the judge to be able –

under certain circumstances – to engage actively in calling evidence and questioning witneses

THE ROLE OF THE JUDGE

a) ADVERSARIAL PROCEDURERule 614 Federal Rules of Evidence (Court’s calling

or examining a witness)

(a) CALLING – The court may call a witness in its own or at party’s request. Each party is entitled to cross-examine the witness.

(b) EXAMINING – The court may examine a witness regardless of who calls the witness.

(c) OBJECTIONS – A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present

THE ROLE OF THE JUDGE

a) ADVERSARIAL PROCEDUREassumption that the truth will most often

completely emerge through the tension between two equally engaged parties

the passive judge fits extremely well in a jury trial where he is supposed to influence as little as possible the jury in the performance of its fact-finding task

the judge does not know the result of the pre-trial investigation

THE ROLE OF THE JUDGE

a) ADVERSARIAL PROCEDURE the judge rules on:

– presentation of evidence– examination of witnesses

the judge summs up the trial for jury (differences in common law jurisdictions):– the relevant law– the evidence

the way in which the judge summs up the trial to jurors is a traditional source for appeals (inappropriate influence on the jury)

THE ROLE OF THE JUDGE

a) ADVERSARIAL PROCEDURErole of the judge during pre-trial investigation – no

role beside making decision with regard to the search, seizure, pre-trial detention and surveillance

magistrate or grand jury decides on sufficiency of evidence for accused to stand a trial but will not play any role in the subsequent trial

THE ROLE OF THE JUDGE

b) CONTINENTAL PROCEDUREactive judge

– actively seeking the truth during the trial – interrogating accused, witnesses etc.– ordering presentation of evidence– control over proceedings– parties play suplementary role even though they

have competencies to put forward evidence and to examine the witness

– no prosecutor’s and defendant’s evidence (rules on direct and indirect examination irrelevant)

THE ROLE OF THE JUDGE

b) CONTINENTAL PROCEDUREdossier

– this active role of the court enabled by the access to dossier that he gains

– dossier – full report of the results of pre-trial investigation

– therefore some resultes of pre-trial investigation don’t have to be repeated of the court room (disclosed to defence, available beforehand to judge)

– everybody (prosecutor, defendant and defence lawyer, judge, also victim!) know the dossier and may refer to its content

THE ROLE OF THE JUDGE

b) CONTINENTAL PROCEDUREthe role of the judge in preliminary investigation

– judge d’instruction not in all continental countries seen as a typical feature of continental system gathers evidence through orders made to police decides what to do with a case – may decide on

dismissal or proceeding with a case to trial ordering coercive measures (search, seizure, pre-

trial detention) the prosecutor may fulfill this role

THE ROLE OF THE JUDGE

b) CONTINENTAL PROCEDUREjudicial review to bring a case to a trial

– distinct forms: positive confirmation negative decision sought by the accused

– the competency of a judge to decide whether evidence is sufficient to bring a case to a trial

– checking out the indictment formally and on its merits

– the judge that decide on sufficiency of evidence will not hear a case at the trial

THE PARTIES AT THE TRIAL

OVERVIEWa) adversarial

– parties present their case during the trial– by adducing evidence in a public hearing try to

convince the jury that a decision in favour of that party is the right decision

b) continental– the judge dominates the course of the trial – parties may adduce addition evidence and suggest

supplementary investigation– majority of the evidence presented in the dossier

THE PARTIES AT THE TRIAL

MAIN ROLEa) adversarial

– presentation of the party case

b) continental– supplementing the investigation (results of the

investigation produced at the trial) making observations and presenting opinions

role of the parties is suplementary to the judge– adversarial passive judge – active parties– continental active judge – passive parties

THE PARTIES AT THE TRIAL

SEEKING FOR EVIDENCE BY PARTIESa) adversarial

– own investigation counducted by the defence

b) continental– relying on the use of investigative powers and

techniques by police officers or experts– parties (defence, victim) has a right during

investigation to file motion with a prosecutor or police (being in charge of investigation) to conduct certain action during the investigation – e.g. to question particular witness or obtain expert’s opinion

THE PARTIES AT THE TRIAL

PRESENTATION OF EVIDENCEa) adversarial– strict order for the presentation of evidence– spearated presentation of evidence by the prosecution and

subsequently by the defence– parties present their case – i.e. evidence in favour of their case– during criminal investigation prosecutor will gather all possible

evidence, disclose to the defence exonerating evidence and bring to the court only evidence in favour of his case

b) continental– no distinction between prosecutor and defence case– during investigation by law prosecutor searches for the

evidence against and for the accused

THE PARTIES AT THE TRIAL

PRESENTATION OF EVIDENCEb) continental

– no distinction between prosecutor’s and defence case

– one ‘court’s case’– during investigation conducted by prosecutor or

police by law they will search for the evidence against and for the accused and subsequently all gathered materials will be send to the court

THE PARTIES AT THE TRIAL

ROLE OF THE VICTIMa) adversarial

– at most the witness for the prosecution case

b) continental– party to the case if victim desires– possible competencies:

calling evidence filing appeal from the final decision questioning witnesses etc. claiming compensation for damages

TRIAL IN THE PRESENCE OF ACCUSED

a) adversarial– inadmissible (inconsistent with a concept of an

adversarial trial)– exceptionally accepted – defendant initially has

appeared and voluntarily chosen not to be present

TRIAL IN THE PRESENCE OF ACCUSED

b) continental– trial in absentia means that the accused was not at

any time in the court– but in continental system it is usually enough that

the accused has been questioned in preliminary investigation (guilty plea obtained at that time) and presented with charges and refused to show up in the court

– it is believed that the prosecutor will observe rights of the accused since it takes a form of official investigation

THE INFLUENCE OF THE PLEA

a) ADVERSARIAL PROCEDUREthe plea entered by the accused at the beginning of

the trial is traditionally decisive to the type of proceedings to follow

on a guilty plea the court will not hear any evidence on charges (only on sentencing)

safeguards:– voluntariness– understanding of the nature and consequences

THE INFLUENCE OF THE PLEA

b) CONTINENTAL PROCEDUREhearing of evidence upon confession it will accelerate proceedings, doing away with the

extensive viva voce hearing of th eevidence as unnecessary

but the court may acquit a defendant anyways even if he pleads guilty (court convinced that the confession reflects the truth)

the court micght disagree with an outcome of guilty plea

extensive judicial review powers on guilty plea

POSITION OF THE DEFENDANT

a) ADVERSARIAL PROCEDUREdefendant may defend himself in court and present

his casehe can present his version of the facts of the case

only when he takes a tand, takes the oath and testifies called by the defence counsel

and because of that he subjects himself to the cross-examination by the prosecution

POSITION OF THE DEFENDANT

b) CONTINENTAL PROCEDUREdefendant may be questioned by court, prosecutor

or defence lawyer at any time (usually it is attempted at the beginning of the trial just after defendant pleads)

his statements are unsworn – he doesn’t have to answear but may answear some questions and refuse to answear other

he can make observations and comment on all actions taken by the court

POSITION OF THE DEFENDANT

RIGHT TO REMAIN SILENT right of defendant common to both systemswhen it begins?what is the scope of that right?

a) adversarial– the defendant might waive his right take the oath and

answear questions

b) continental– the defendant cannot take an oath, he explains in

narrative way followed by the questions– he might change his mind at any time

DISCLOSURE

a) ADVERSARIAL PROCEDUREtraditionally parties conducted their own

investigations in the pre-trial phase and were not under an obligatiion to report the result to the other party and to the court prior to trial

the court assists the parties to conduct their investigations effectively through coercive measures

nowadays – complex disclosure obligations in particular on the prosecution, were developed

DISCLOSURE

b) CONTINENTAL PROCEDUREpre-trial investigation conducted under the

judicial/prosecutorial authoritythe results of the investigation disclosed to the

partiy upon her request at the end of the investigation and sometimes during the investigation when prosecutor/investigative judge agrees

the results known also to the court

DISCLOSURE

PROBLEMS CONSIDERING DISCLOSUREsee (adversarial procedure):

– Jencks v. U.S., 353 U.S. 657 (1957)– Jencks Act (18 USC § 3500)– Brady doctrine

extent to which the defendant is under the obligation to disclose materials to prosecution:– notice of certain types of defence (alibi, insanity)– disclosure in general lines the nature of defence

disclosure of unused material and written statments of witnesses

DISCLOSURE

GENERAL IMPORTANCE OF DISCLOSUREa) adversarial

– the indictment provides limited information– prevents trials from ambush– ives the defendant fair opportunity to prepare his

case

b) continental– information in dossier available fully to the court and

parties– no obligation on defendant to reveal his materials to

prosecution

THE DOSSIER

a) ADVERSARIAL PROCEDUREno dossier containing the results of the pre-trial

investigations to serve the judge in th epreparation or the conduct of the trial

the judge is an umpire and does not need to know the information about investigation

the jury has, and should have, no knowledge of the results of the discovery – all evidence (testimonial and real evidence) is presented during the trial by the parties

THE DOSSIER

b) CONTINENTAL PROCEDUREdossier available to the parties and to the bench

who needs these results in order to play its active controlling role at the trial

the court may rely on documents – protocols – produced during pre-trial investigation

might be read out in the court room if the witness forgets

or might be presumed as disclosed due to the fact that everybody know their content (records of search and seizure)

RULES OF EVIDENCE

a) ADVERSARIAL PROCEDUREstrict rules on evidencemain issue: whether the evidence presented by the

party should be admitted or excluded?basis for exclusion of evidence:

– content (hearsay)– the way the evidence was obtained (illegaly)– protection of information (idenitity of informant)– the way evidence is presented (improper questioning of

witnesspreventing the jury to hear information

RULES OF EVIDENCE

a) ADVERSARIAL PROCEDUREthe law of evidence functions as a mechanism at

trial keeping the parties on the right path in their presentation of evidence

MOST IMPORTANT: preventing the jury from getting acquainted with anything that might be improper to consider in reaching a verdict

but no jury trials are conducted in the same way

RULES OF EVIDENCE

b) CONTINENTAL PROCEDUREdossier which is at the disposal of court IS

EVIDENCE (for common law – potential evidence since not yet presented and admitted in court)

the content of dossier in total is a basis for verdict together with additional evidence presented during trial

the evidence in dossier and additional evidence may be irrelevant, obtained illegally, inadmissible and it is courts role to assess to what extend it serves conviction of guilt of the accused

RULES OF EVIDENCE

b) CONTINENTAL PROCEDUREthe law of evidence is a normative instrument for

the judge while evaluating the content of the dossier and what has been adduced at trial

the function of the law of evidence in both systems is distinct but the substance of rules does not differ– exclusion of illegally obtained evidence or irrelevant

evidence– exclusion of opinion of non-expert witness– facts of common knowledge need not be proven

RULES OF EVIDENCE

DISTINCT ROADS TO ACHIEVE SAME GOALSa) adversarial

– examination of the witness usually interrupted by objections followed by the immediate decision of the judge

b) continental– testimonies presente din the courtroom even if

inadmissible to some extent– but judge in his deliberations presents that it is

improper or pointless to consider such statement and he ignores it when taking final decision

JURY

a) adversarial– right of the defendant to a trial by jury– fundamental principle of common law to be tried by

one’s peers: Magna Charta of 1215 in England 6th Amendment of the US Constitution Article 11 (f) of the Canadian Charter of Rights

and Freedoms

b) continental– no right to jury trial (Spanish Constiturion art. 125)– some form of layman participation in trial chambers

DETERMINATION OF GUILT/SENTENCING

a) ADVERSARIAL PROCEDUREadjudication typically divided

– trial phase – conviction or acquital (trier of fact)– sentencing phase – penalty (trier of law)

reasoning: in jury trials threat that jury will be confused while hearing evidence or argument on sentencing while they still have to decide whether the defendant is guilty or not

DETERMINATION OF GUILT/SENTENCING

B) CONTINENTAL PROCEDUREone judgement after one plhase of proceedingsit is not a problem to hear the vidence together by

professional judges – they understand evidence on guilt and sentencing better and can more easily differ between those two (can they?)

the dossier contain relevant information for sentencing (criminal record, social reports)

the court will have to resist the temptation to draw conclusions from that material while still deliberating on guilt

APPEAL

a) ADVERSARIAL PROCEDUREstrict limitation on the right to appeal (both on

matters of fact and law)not considered as a part of due processonly convicted can appeal convictionusually no new trial but review of the records of the

first trial in search for errorserrors not resulting in reversal of judgment

– harmless– not invalidating the correctness of verdict– leading to substituting verdict

APPEAL

a) ADVERSARIAL PROCEDUREaccorded generously both to prosecution and

defendant immanent element of the rule of law principlefull re-hearing of the case but not rehearing of all

evidencecourt of appeal replace the first judgment with his

ownusually subject afterwards to appeal (cassation) to

Supreme Court