Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Part III-B – Civil Law

Considering the outlined differences between continental and common law attitudes, there remains only one understanding of free proof that can safely be employed across Western legal systems. On this view, free proof rhetoric expresses the preference for a factfinding regime in which adjudicators are permitted to use ordinary processes of cognition, free to follow the same procedures as the informed public in arriving at the verdict. Both continental and common law jurisdictions seem to subscribe to this preference – at least in principle, or as a prima facie matter – as an organizing schema for technical arrangements.1Mirjan Damaška, Free Proof and Its Detractors, 43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter “Damaška”).

Civil law based systems, which are also referred to as Romano-Germanic, are judge-driven, lacking many of the adversarial features essential to common law systems.  I use the plural for “systems” because there is no single and uniform civil law system.  Each civil law based system has its own nuances and distinctions.  Query whether any civil law based system, be it modeled after the French system with the investigative judge conducting the investigation or modeled after the German system with the prosecutor in charge of the investigation, can claim to be procedurally pure in the sense that it solely employs inquisitorial procedures. Even within the French and German models there are significant differences. Few contemporary systems fit neatly into one definition; different elements and tools contribute to the degrees of fusion.  Indeed, some civil law based systems can more accurately be characterized as hybrid, having adopted adversarial / common law modalities, such as is the case in Italy.

Nicolaus-Beckmann-Jus-novissimum-romano-germanicum_MG_1057.tifIn this post I follow up on my discussion on the common and civil law approaches to the standards and burdens of proofs.  I will discuss the rudimentary aspects of the French, German, Dutch, and Italian criminal proceedings in comparing their respective approaches to the standards and burdens of proof and contrast it with the common law approach. Recognizing the nuanced differences between each of these systems, I will merely make some general observations in order to contrast both the philosophical foundations and the concrete responsibilities of the participants with those in common law systems.  The specialist in any of these jurisdictions may find my generalizations bordering on the simplistic.  Fair enough.  My aim is not to get into the weeds, but to take a bird’s eye view of these various systems, particularly when it comes to the standards and burdens of proofs – terms which, in civil law based systems, do not necessarily apply or accurately reflect these concepts as understood in common law systems.  Hopefully, even with some cursory knowledge of the standards and burdens of proof as applied in the common law and civil law systems, lawyers practicing before the international courts and dealing with judges from these legal systems and traditions will better appreciate and understand the challenges before them. Being heard by the judge is not the same as being listened to by the judge.  Relating to the judge’s understanding of his or her role during the proceedings and in assessing evidence in rendering decisions, enables defense lawyers (and prosecutors and civil party lawyers) to boutique their approach in developing the trial narrative through the presentation of evidence and oral and written submissions in a way that is most receptive to the judge as the trier of fact and law.

Some general observations on the taking of evidence and proofs

In civil law based systems, it is within the exclusive province of the trial judges to be convinced that they have pursued all lines of questioning and have reviewed all relevant evidence that would enable them to get as close to the truth as possible.  Their task is to find the material truth through analyzing the case file and exhaustively questioning the witnesses, as opposed to relying on the prosecution to prove its case beyond a reasonable doubt (as adopted in Italy).

Civil law judges can take various measures useful for the discovery of the truth, including summoning and questioning witnesses, requesting or conducting further investigation if necessary, raising issues on behalf of the accused, and – to a certain extent – re-characterizing the facts to encompass new or different charges that align more closely with the evidence.2French Code of Criminal Procedure (“CCP”), Arts. 118, 310, 351; German CCP, Sections 206, 265. The issue of re-characterization, which has proved to be controversial at the International Criminal Court and has, in my opinion, been misapplied at the ECCC, will be discussed in a future post.

In most civil law based systems (unlike hybrid systems, such as in Italy or Bosnia and Herzegovina), the judges select which witnesses they wish to hear viva voce, which witness statements taken by the investigative judges or public prosecutor they will rely on from the case file, what documents they will rely on from the case file.  Judges may rely on written witness statements, however, if the proof is based on the observations of a witness, he or she will be examined at the main hearing since there is preference for oral testimony.3See, for example, German CCP, Section 350 codifying the principle of examination in person.  The judges also determine to what extent they will allow any further questioning or consideration of documents as proposed by the prosecution and defense lawyers.

As with judges conducting a bench trial in common law systems, judges in civil law based systems perform the task of both fact-finder (trier of fact) and law-giver (trier of law).  The judge’s responsibility is expressed in the Latin maxim iura novit curia – “the court knows the law.”4Mattias Derlén, Multilingual Interpretation Of European Union Law 314 (Kluwer Law International 2009).   It reflects the judge’s duty to find the law applicable to the facts presented: da mihi factum, tibi dabo ius – “give me the facts, and I will give you the law.”5Id. See also James R. Maxeiner, Thinking Like a Lawyer Abroad: Putting Justice into Legal Reasoning, 11 Wash. U. Global Stud. L. Rev. 55, 85 (2012), discussing the application of the two maxims in the German legal system.  The two maxims encapsulate the essence of the civil law based systems: the judge knows the law and can apply it to the facts of the case without it being stated in the pleadings.  The prosecution and defense lawyers will assist the judge in finding the law and are not prevented from discussing it, but in the end it is for the judge to make it clear what the law is:

The fact that the parties have invoked statutory rules, customary rules, or even judge-made rules to support their respective claims does not prevent the judge from looking for other applicable rules of law. Judges are empowered to look for applicable rule of law and to apply it to the case, regardless of the citations made by the parties….6Julio C. Cueto-Rua, Judicial Methods Of Interpretation Of The Law 30 (The Publication Institute Paul M. Hebert Law Center, Louisiana University 1981).  

Conversely, if one of the parties fails to raise an issue, it is the judge’s duty to raise it ex proprio motu to prevent the miscarriage of justice.  Hence there is no need for making the record by objecting to the evidence – the judge knows the law and is expected to disregard the irrelevant or unreliable evidence.

After questioning the witnesses and hearing from the parties, the judge deliberates on the evidence: in-court testimony, written statements in the case file, and any other relevant documentary or physical evidence.  In assessing the evidence, “[the judge] must be … free to float hither and thither between the positions of the parties and finally reach a decision at the place which, in correct application of the rules of jurisprudence, marks the just solution.”7Stefan Trechsel, Human Rights in Criminal Proceedings 50 (Oxford University Press 2005).

Judges are expected to issue the verdict based on their inner convictions, or more precisely, intimate conviction.  Generally, intimate conviction can be described as the personal opinion the judge forms, after questioning himself or herself in silence and reflection and seeking in the sincerity of his or her conscience the impression that has been made upon his or her reason by the evidence brought against the accused and the arguments of defense lawyers. Judges must also provide reasons justifying their decisions, thus transparently expressing in writing their findings of fact and conclusions of law.  The reasoned decision is a safeguard against arbitrariness, making such a decision appealable to a higher court, which will assess the correctness and reasonableness of the factual findings.  In a written judgment the judge is obliged to list all of the evidence submitted during the proceedings and to painstakingly articulate what evidence was accepted and what weight it was given, what was rejected, and the reasons for doing so.8French CCP, Art. 485; German CCP, Section 267.  The judge must justify his or her judgment “for the benefit of the parties, their lawyers, the bench and bar at large, and the community.”9Julio C. Cueto-Rua, Judicial Methods Of Interpretation Of The Law 36 (The Publication Institute Paul M. Hebert Law Center, Louisiana University 1981).   The judge knows that his or her “behavior has to be understood and accepted. He becomes a truly effective organ of the state only when the community can see reason and justice in his judgment.”10Id.

The in dubio pro reo principle is ever-present in the judge’s mind when finally assessing the evidence. The in dubio pro reo principle gives the accused the benefit of the presumption of innocence.  The judge as the trier of fact must be convinced of the facts establishing the accused’s guilt before he or she can find the accused guilty, by the evidence viewed in the way most favorable to the accused.11Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B. C. Int’l & Comp. L. Rev. 317, 343-44 (1995) (hereinafter “Frase & Weigend”).    This principle – intrinsic to the presumption of innocence – is often implied in legal codes and constitutions.  For instance, the French présomption d’innocence derives from Article 9 of the 1789 Declaration of the Rights of Man, which has force of the constitutional law and begins with: “Tout homme étant présume innocent jusqu’a ce qu’il ait été déclaré coupable(As all persons are presumed innocent until proven guilty….)”12George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 881, note 4 (1967-1968) (hereinafter “Fletcher”), citing L. Duguit, H. Monnier & R. Bonnard, Les Constitutions De La France Depuis 1789, at 2 (7th ed. 1952). See also P. Campbell & B. Chapman, The Constitution Of The Fifth Republic 11 (2d ed. 1959).   In Germany, scholarly interpretations devise at least six legal rationale for the in dubio pro reo principle:

  1. The maxim derives from Section 261 of the Strafprozessordnung [StP0] (Code of Criminal Procedure), which provides that triers of fact should evaluate evidence freely, unrestrained by rules ranking competing kinds of evidence (Freie Beweiswürdigung);13Id., note 3, citing Seibert, In dubio pro reo, 4 Deutsche Rechts-Zeitschrift 557 (19.49); Loewe-Rosenberg, Die Strafprozessordnung § 261, Comment 4, at 1067 (21st ed. 1963).
  2. The maxim derives from StPO § 244 (2), which requires that courts, sitting as triers of fact, investigate all pertinent matters, including matters not put forward either by the prosecution or the defense.14Id., citing E. Schmidt, Lehrkommentar zur Strafprozessordnung, § 244, Comments 10-12, at 669-70 (1957) (“the duty to investigate the facts entails the duty to determine the facts unequivocally”).
  3. The maxim derives from StPO § 267 (1), which requires that a judicial finding of guilt be supported by an opinion “setting forth the facts deemed proved.”15Id., citing H. Henkel, Strafverfahrensrecht 405-06 (1953).
  4. The maxim has the status of customary law.16Id., citing E. Kern, Strafverfahrensrecht 64 (8th ed. 1967).
  5. The maxim is a restatement of the principle that no man should be punished unless he is guilty – nulla poena sine culpa.17Id., citing W. Stree, In Dubio Pro Reo 15-16 (1962).
  6. The maxim is entailed by concept of a Rechtsstaat – a state based on law.18Id., citing D. Mann & U. Mann, Die Anwendbarkeit des Grundsatzes “in dubio pro reo” auf Prozessvoraussetzungen, 76 Zeitschrift für die gesamte Strafrechtswissenschaft 264, 272ff. (1964).

The in dubio pro reo principle in conjunction with or as an integral part of the principle of “free evaluation of evidence” when considered within the context of the presumption of innocence, reflects the commitment to the dignity of the individual; the interests of the individual ought not readily yield to the supposed benefits of applying criminal sanctions.  It operates in a similar manner to the reasonable doubt standard in common law jurisdictions, reinforcing, if you will, the often quoted aphorism attributed to Blackstone (among others) that it is better that ten guilty persons escape than that one innocent suffer.19An expression by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.

Burden of being convinced and intimate conviction

Truth-LiesAs can be seen, the trial judge is burdened with the task of convincing himself or herself, i.e., looking impartially for his or her intimate conviction, that based on the available evidence in the case file and the evidence adduced during the trial proceedings, he or she has come as close to the truth as possible.

The meaning of the term “burden of proof,” as referred to in the common law systems as the duty of the prosecution to produce sufficient evidence to convince the fact-finder that an assertion or charge has been proved, varies among the civil law based systems. The public prosecutor, representing the state – or more aptly the state through the public prosecutor – has a burden of proof that is more akin to a burden of going forward. Effectively – and this would appear to be the operative word for the common law lawyer – where the judge is duty-bound to search for the truth, selects the witnesses he or she wishes to hear (in addition to those requested by the parties), requests or even conducts additional investigation to secure more evidence (inculpatory or exculpatory), it is the judge who bears a burden – a burden of convincing himself or herself that based on the evidence adduced during the proceedings, he or she has come as close to the truth as possible.20MOJTABA KAZAZI, BURDEN OF PROOF AND RELATED ISSUES: A STUDY ON EVIDENCE BEFORE INTERNATIONAL TRIBUNALS 26 (Martinus Nijhoff Publishers 1996) (hereinafter “Kazazi”). This is radically different from the common law system, where the onus is exclusively on the prosecution to prove the charges it has brought against the accused on behalf of the state.

With the burden of persuasion, or more fittingly, the burden of being convinced being on the trial judge, the prosecution’s burden is more akin to a burden of production, i.e. a duty of going forward in producing evidence to support an allegation of fact. This would be in line with or a direct consequence of the presumption of innocence. That said, if an accused raises a specific defense, the onus is on the accused to offer convincing proof of the defense raised. This is not the same where the judge, ex proprio motu raises a defense on his or her own, which he or she, by his or her inherent authority and responsibility in searching for the truth, is required to do. Similarly, if a valid legal issue was neither raised by the parties nor addressed by the judge, it is not deemed waived. The appellate judges are duty bound to raise it and dispense with it. This effectively ensures that the accused and the victim(s), as well as society as a whole, are protected, if you will, from any failures of the trial judge to carry out his or her responsibilities to ensure that justice is done. Thus, consistent with the overarching duty to search for the material truth, the judge will consider all defensive issues, whether affirmative or negative, as unavoidable steps in the process of the overall evaluation of the case.

As noted, entrusted with the task of getting to the truth, the judge can re-characterize the charges to fit the case at hand.21French CCP, Arts. 118, 310, 351; German CCP, Sections 206, 265; Dutch CCP, Section 350. For more on the legal re-characterization of facts, see Carsten Stahn, Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation 55, 16 CRIM. L.F. 1, 4-6 (2006), discussing the common and civil law approaches. The prosecution’s legal characterization of facts in the final submission (in France) or in the indictment (in Germany) is considered a mere recommendation. Since the judge knows the law, he or she is best poised to recalibrate the charges to the facts as presented during the trial. Logical. Since the judge is entrusted with the responsibility of convincing himself or herself that based on the evidence he or she has come as close to the truth as possible, it would be antithetical to his or her duty to render a verdict that is not legally and factually consistent with the evidence. As such, if the evidence reflects a more appropriate charge, neither an acquittal nor a conviction should result by dint of the prosecution’s mischarging of the case. This is a much more justice-oriented process than, say, the common law system, where, quite often, a miscarriage of justice results, such as when a jury convicts an accused on excessive charges brought by the prosecution as a matter of course in order to induce a plea agreement on lower charges that are representative of the facts.

Academic discussions on the burden of proof practices in civil law based systems highlight the impact of the nature of the proceedings (whether there are adversarial or inquisitorial modalities) on the importance and allocation of the burden related to producing evidence.

In German private law, where the proceedings contain adversarial modalities, the concept of the burden of proof is better researched.22Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches With Special Reference to the American and German Legal Systems 10 (Martinus Nijhoff Publishers 1998) (hereinafter “Kokott”), referring to Leo Rosenberg, Die Beweislast (C. H. Beck 1965); Dieter Leipold, Beweislastregeln und Gesetzliche Vermutungen, Insbesondere bei Verweisungen zwischen verschiedenen Rechtsgebieten, (Duncker & Humboldt 1966); Reinhard Greger, Beweis und Wahrscheinlichkeit: Das Beweiskriterium im Allgemeinen und bei den Sogenannten Beweiserleichterungen (Heymann 1978).   German scholars distinguish between the burden of persuading the trier of fact as the objective burden and the burden of production of evidence as the subjective burden.23Kokott, p. 15, referring to Hanns Prütting, Gegenwartsprobleme der Beweislast 6-7 (C. H. Beck 1983); Frederick Eisner, Beweislastfragen und Beweiswürdigung im deutschen und amerikanischen Zivilprozess, 80 Zeitschrift fur Zivilprozess [ZZP], 78, 82 (1967).   Juliane Kokott, a comparative law scholar and German Advocate General at the Court of Justice of the European Union, observes that in German criminal law, scholars, at times, refer to the burden of proof without distinguishing between the burden of production and the burden of persuasion.  According to Kokott, there is a tendency to conflate the two kinds of burdens, or to maintain that in inquisitorial proceedings, where judges investigate and collect evidence, the evidentiary burden of proof does not apply.  Calling for more precision in the use of the terms subjective burden of proof or burden of producing evidence, she explains that because “rules on the burden of producing evidence do exist in the German system … the tendency is to put the subjective burden (of production) into the foreground, often overlooking the existence of an objective burden [the burden of persuasion].”24Kokott, p. 10.

Rendering a judgment according to the intimate conviction standard takes into account the act that has to be judged, as well as the accused as a person, in all of his or her subjectivity.25Jean-Marie Fayol-Noirterre, L’Intime Conviction, Fondement de l’Acte de Juger, 127 Informations Sociales 46, 46-47 (2005/7).   A person’s conduct is judged.  For instance, the exercise of the right to remain silent (although this right is recognized and respected throughout civil law based systems) may give rise to inferences unfavorable to the accused, as he or she is regarded as a necessary source of information in revealing the truth.  Instructive is the European Court of Human Rights (“ECtHR”) decision in a case against the United Kingdom, even if not directly related to civil law based systems:

The question in each particular case is whether the evidence adduced by the prosecution is sufficiently strong to require an answer.  The national court cannot conclude that the accused is guilty merely because he chooses to remain silent.  It is only if the evidence against the accused “calls” for an explanation which the accused ought to be in a position to give that a failure to give any explanation “may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty.”  Conversely if the case presented by the prosecution had so little evidential value that it called for no answer, a failure to provide one could not justify an inference of guilt. In sum, it is only common-sense inferences which the judge considers proper, in the light of the evidence against the accused, that can be drawn under the Order [the Criminal Evidence (Northern Ireland) Order 1988].26Murray v. The United Kingdom, App. No. 18731/91, 8 February 1992, para. 51.

In short, based on this cursory overview, which merely skims the surface of the rich, complex, and diverse civil law based systems, we can draw some general conclusions.  Essentially, in the civil law based systems, the parties’ functions and responsibilities are circumscribed, placing the judges in the proverbial driver’s seat in searching for the truth.  Civil law based systems share common characteristics, such as putting the judges in control of proceedings: judges are responsible for ensuring that all relevant evidence has been gathered (they select which witnesses will be questioned, with the prosecutor having the right to supplement the list of witnesses and the questioning) and taking other measures they believe useful for the discovery of the material truth.27David S. Clark, Comparing the Work and Organization of Lawyers Worldwide: The Persistence of Legal Traditions in J.J. Barceló III & R.C. Cramton (eds.), Lawyers’ Practice and Ideals: A Comparative View 9, 35-69 (Kluwer Law International 1999), describing the difference in the roles of lawyers worldwide.  Overall, the intellectual process of assessing evidence in the judge-driven civil law based systems is no different than it is in party-driven common law or hybrid systems.  That said, there are appreciable differences in the standard of proof beyond a reasonable doubt and the standard of convincing oneself to an intimate conviction.


In France, the preliminary investigation is conducted by the judicial police under the supervision of the public prosecutor.28French CCP, Arts. 12, 31.  The prosecutor is a public official who represents the “interests of society”29French CCP, Art. 31. and is obliged to search for the truth and investigate all aspects of a crime, including both incriminating and exculpatory evidence.30French CCP, Art. 31.  “The continental [civil law] prosecutor is not another private party, but the public party, the advocate of the people.  This entails a specific ethical duty of acting in the interest of law and justice, and being guided solely by the search for truth.”31See Jean-Marc Baissus, Common v Continental: A Reaction to Mr Evan Whitton’s 1998 Murdoch Law School Address, 5(4) Murdoch U. Electronic J.L. para. 17 (1998).

A suspect has limited access to a lawyer during interrogation in police detention.  The defense lawyer’s participation in the investigation process is substantially limited, because “[l]awyers are regarded in this context as obstacles to the discovery of the truth.”32Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 462 (2005) (hereinafter “Nagorcka”).   On the other hand, a suspect is regarded as a necessary source of information in revealing the truth.33French CCP, Art. 33. See Nagorcka, note 33 (2005), referring to Bron McKillop, Anatomy of a French Murder Case 90 (1997).

Minor offences (liability for which is less than two month of imprisonment) are investigated entirely by the police and public prosecutor.34French CCP, Art. 63-4.   Serious offences (five years of imprisonment or more) must be investigated by the investigative judge (juge d’instruction).35French CCP, Art. 70.  Once the prosecution has conducted the preliminary investigation and identified the criminal facts in an introductory submission, the investigative judge is effectively seized of the investigation.  The investigative judge is solely responsible for conducting the investigations, including summoning and questioning witnesses,36French CCP, Arts. 114-119. visiting the crime scene,37French CCP, Art. 92. obtaining expert reports,38French CCP, Arts. 156-169. and taking any other measures useful for the discovery of the truth.39French CCP, Art. 310.  He or she has an obligation to stay neutral and search for both incriminating and exculpatory evidence.40French CCP, Arts. 12, 31, 81, 82-1, 97. The prosecution and defense lawyers can neither contact witnesses nor gather evidence; they can make investigative requests to help discovering the truth.41French CCP, Arts. 81(9), 82-1(1). The investigative judge will conclude his or her investigation by either drafting an indictment (when there is enough evidence to send someone to trial) or dismissing the case (if there is insufficient evidence).  The French system provides for the victim’s participation in the criminal trial as a civil party. Civil parties may request civil remedies by filing a complaint before the investigative judge.42French CCP, Art. 85.  As a party to the proceedings, a civil party has a right to legal representation,43French CCP, Art. 33-1. can summon witnesses to appear before the court,44French CCP, Art. 281. and can request expert reports.45French CCP, Arts. 156, 167.

All relevant evidence is collected and placed in the case file, commonly referred to as the dossier.46French CCP, Arts. 81-82.  The case file contains all of the evidence the trial judge and the parties will rely on during the trial. If the investigative judge considers that there are sufficient grounds for a trial, he or she will refer the case file to one of the courts or tribunals, depending on the seriousness of the offence. Serious offences (five years of imprisonment or more) are tried at the French Cour d’Assise, comprising three judges and six jurors at the trial level, and three judges and nine jurors at the appellate level.47 French CCP, Art. 231.

The French Code of Criminal Procedure (“CCP”) does not provide for elaborate rules of evidence, compared to those in common law systems (for instance, the US Federal Rules of Evidence).  Because all evidence has been screened during the investigation by an investigative judge, who is obliged to collect both incriminating and exculpatory evidence, it is all deemed sufficiently relevant to be considered at trial.  The overarching aim of discovering the material truth underpins the willingness to admit all evidence, including what is normally considered inadmissible in common law systems (for instance, hearsay). The broader approach to the admissibility of evidence, known as the principle of “free evaluation of evidence,” also stems from the professional judge’s ability to determine what constitutes admissible, reliable, and relevant evidence.48See Damaška, p. 346, discussing the “free-proof approach” to the admissibility of evidence, its historical development and current application in the civil law systems. See also Paul de Hert, Legal Procedures at the International Criminal Court – A Comparative Law Analysis of Procedural Basic Rights, in Supranational Criminal Law: A System Sui Generis 79, 114 (Roelof Haveman et al. eds., Intersentia 2003); Caroline Buisman, Myriam Bouazdi & Matteo Costi, Civil Law Rules of Evidence, in Karim A. A. Khan, Caroline Buisman & Chris Gosnell (eds.), Principles of Evidence in International Criminal Justice 34 (Oxford University Press 2010) (hereinafter “Buisman et al.”).

Where a jury is guided by three professional judges, as with the Cour d’Assise, strict exclusionary rules that exist in common law systems are unnecessary, as proper judgments as to relevance and probative force are made and explained in written decisions.

The proceedings of a French criminal trial are amply summarized by Felicity Nagorcka, Michael Stanton, and Michael Wilson in their comparative analysis of adversarial (Australian) and inquisitorial (French) criminal systems:

After procedural objections are settled, the indictment is read out to the accused. The presiding judge will summarise the contents of the pre-trial dossier, and support this summary by asking questions of the accused. The accused does not plead, but is examined by the judge about his or her biographical details (including previous offences). The accused is likely to be questioned closely if he or she departs from their deposition in the dossier. The prosecutor and defence counsel may suggest questions to be put by the presiding judge or may be allowed to question the accused themselves. Lay jurors and the assessors may only ask questions of the accused after asking the presiding judge for permission to speak. The accused is not under oath when being questioned. After the accused has been questioned, the presiding judge calls any expert witnesses, police witnesses and finally lay witnesses. The witnesses first answer a number of questions regarding their personal details and their relationship with the accused, put to them by the presiding judge. They then make an uninterrupted statement. At the conclusion of the statement, the presiding judge may ask questions of the witnesses. Whilst there is no formal cross-examination, counsel may suggest questions to be put by the presiding judge. After the evidence has been presented, the prosecutor addresses the court, and will usually ask for a specific punishment. Defence counsel then addresses the court. Both addresses will be wide-ranging and go beyond the oral evidence before the court. The accused has a right to the last word.49Nagorcka, p. 458-459.

A defense lawyer’s role is mainly limited to suggesting additional witnesses to be heard,50French CCP, Arts. 281, 324, 329. suggesting additional questions to be asked after a witness has given his or her statement,51French CCP, Art. 332. and making eloquent allocutions akin to closing arguments.  According to Jacqueline Hodgson, the role of the defense lawyer in France is to interpret the evidence gathered in a manner favorable to the accused (client) and, overall, to ensure that the accused’s fair trial rights are not being infringed:

In most instances, the avocat does not challenge the pre-trial dominance of the juge d’instruction, accepting the subsidiary role allotted to her within the inquisitorial model. The prevailing defence culture is one of re-reading the dossier in a way that is most favourable to the client, rather than engaging in the outright challenge of issues of or evidence which go to culpability.52Jacqueline Hodgson, The Role of the Criminal Defence Lawyer in an Inquisitorial Procedure: Legal and Ethical Constraints, 9 Legal Ethics 125, 135 (2006).

After the trial is concluded, the judges are expected to consider and render a verdict based on their intimate conviction.53French CCP, Art. 353.  Before the deliberation on the verdict, the presiding judge reads an instruction to the jurors explaining intimate conviction:

The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?54French CCP, Art. 353, (unofficial translation from

In the Cour d’Assise, although in theory the lay jurors may unite to outvote the three professional judges, it rarely occurs in practice because lay jurors are greatly influenced by the professional judges.55Nagorcka, p. 461, citing Mirjan Damaška, Structures of Authority and Comparative Criminal Procedure, 84 Yale L.J. 480, 493 (1975).  Consistent with the principle of “free evaluation of evidence,” the judge will decide what kind of evidence he or she will accept, and what weight, if any, it will be given.  The in dubio pro reo principle also applies.  In France, this principle is derived directly from the presumption of innocence.56French CCP, Art. 485.  Moreover, since the law amendment in 2011 in order to comply with the ECtHR, the judges of the Cour d’Assise must provide reasons justifying their decision.57See Agnelet v. France, App. No. 61198/08, 10 January 2013, para. 71, finding a violation of Art. 6, inter alia, because “the applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty.”  See also Papon v. France, App. No. 54210/00, 15 December 2001, para. 6(f): “according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based.”  Thus, the obligation to justify the decision and adequately explain the reasons on which the decision is based limits the judge’s freedom in evaluating the evidence, making such a decision appealable to a higher court.


In Germany, investigations of serious offences are carried out by the public prosecutor.58German CCP, Section 170(1).  For this purpose, the public prosecutor has broad powers: he or she interrogates the suspect59German CCP, Section 163(a). and summons and interrogates witnesses, including experts.60German CCP, Section 161(a).   There is also an investigative judge, but his or her role is mainly restricted to granting warrants for coercive measures upon application from the public prosecutor, including arrest, pre-trial detention, search, seizure, or surveillance of telecommunication warrants.61Frase & Weigend, p.  325.

Similar to France, under Section 160(2) of the German CCP the public prosecutor in Germany has an obligation to search for both incriminating and exculpatory evidence.  This provision of the CCP gave rise to the saying that the public prosecution office is “the most objective authority in the world.”62Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law? 6 (Springer 2014); Eberhard Siegismund, The Public Prosecution office in Germany: Legal Status, Functions and Organization, UNAFEI Annual Report for 2001 and Resource Material Series No. 60, pp. 58-76, 59 (2003).  The idea of the prosecution being a neutral part of the legal system is still upheld in Germany, in theory.  Many of my German colleagues beg to differ with this rather bold statement; it appears that almost everyone agrees that the idea that the public prosecutor office is the embodiment of neutrality, detachment and objectivity in carrying out its mandate is no more – if it ever were. In practice, things are much more adversarial than they should be.  Some recent critical studies of the German prosecution practices have argued that prosecutors have abandoned the role of objective decision-makers.63See Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law? (Springer 2014).   According to Eberhard Siegismund, Deputy Director General in the Judicial System Division, Federal Ministry of Justice, “the public prosecution office is, however, not infrequently said, as the ‘cavalry of the law,’ to demonstrate a certain ‘dashing spirit’ and is thus thought to be blind in its enthusiasm for prosecution.”64Eberhard Siegismund, The Public Prosecution office in Germany: Legal Status, Functions and Organization, UNAFEI Annual Report for 2001 and Resource Material Series No. 60, pp. 58-76, (2003).

During the pre-trial phase, defense lawyers are allowed to access and examine the prosecution’s file.65German CCP, Section 147.  Defense lawyers are not prohibited from carrying out private investigations, but they have no means of compulsion.  To coerce collecting the evidence on behalf of the defense, defense lawyers are allowed to make investigative requests to the public prosecutor; however, they will be carried out only if the public prosecutor deems them of importance for the investigation.66German CCP, Section 163a(2).  Suspects have a right to remain silent, and must be informed of this right, as well as of the charges against them at the beginning of any interrogation.67German CCP, Sections 136(1), 163a(3).   If a suspect was not aware of this right and the interrogator failed to inform him or her, the statement cannot be used as evidence against the suspect.68BGHSt 38, 214 (1992).

The concept of excluding otherwise relevant evidence is not foreign to the German criminal justice system.  The German CCP contains some exclusionary rules, although it works differently than in common law systems. For instance, Section 136a explicitly excludes the use of suspects’ or witnesses’ statements obtained by force or coercion.  There are rules regarding the private information that is deemed inadmissible at trial against the accused.  Nevertheless, if the interests of community prevail, the court must use this evidence.69Frase & Weigend, p. 335-336, citing BVerfGE 367, 373-76 (1989).  Evidence obtained in violation of the laws, for instance, due to police misconduct, may also be excluded.  However, “German courts tend to balance the interests involved, the importance of the evidence for finding a judgment, and the seriousness of the violation…. [F]ruits of illegal searches and wiretaps are often admitted into evidence.”70Frase & Weigend, p. 336.  The trial judge is familiar with the case file and will have the information about any legally inadmissible evidence.   Since the judge is the trier of fact, he or she is expected to “forget” about this information and cannot rely on it in rendering a verdict.

At trial, the presiding judge conducts the taking of evidence and examination of witnesses.71German CCP, Section 238(1).   After the presiding judge has questioned the witnesses, the parties may examine them and ask additional questions.72 German CCP, Section 239.  Defense lawyers play a more active role in the sense that they can examine the prosecution’s witnesses.73German CCP, Sections 239, 240.  Michael Bohlander observes, “[t]he position of the defendant herself in practice is fundamentally different in that she is not merely a quasi-piece of evidence, but a fully equal party: she may address the court, make motions, and question witnesses directly….”74Michael Bohlander, The Need for Revisiting the Conversation Between Common and Civil Law at Root Level at the Example of International Criminal Justice, 24 Leiden J. Int’l L. 393, 396 (2011).  Ultimately, regardless of the activity (or inactivity) of the party, the court is responsible, ex proprio motu, for taking all of the evidence “in order to establish the truth.”75German CCP, Section 244.  Unlike in common law systems, the taking of evidence cannot be refused simply because the evidence was submitted too late.76German CCP, Section 246(1).   If this is the case, the opposing party may apply to postpone the hearing in order to gather the necessary information.77German CCP, Section 246(2).

At the trial hearing, the documentary evidence is read out, including the previous criminal judgments and records.78German CCP, Section 249.  If the proof of a fact is based on the observation of a witness, there is a preference for viva voce testimony rather than reading out the record of a previous examination or reading out a written statement.79German CCP, Section 250.  After the taking of evidence has been concluded, the prosecutor and the defense lawyers are allowed to present their arguments.80German CCP, Section 258.

In Germany, the in dubio pro reo principle was applied well before the presumption of innocence was recognized.81In 1952, the presumption of innocence established by Article 6(2) of the ECHR has had the status of domestic law in the German Republic. See Ratifying law of August 7, 1952, [1952] Bundesgesetzblatt [BGBl.] II 685, 953.   The verdict is decided “on the result of the evidence taken according to its free conviction gained from the hearing as a whole.”82German CCP, Section 261.  The judge’s conviction of the defendant’s guilt “must be subjective and must be based on persuasive factors which leave no room for reasonable doubt.”83Frase & Weigend, p. 344.   The Federal Supreme Court of Germany interpreted the standard of proof in criminal proceedings to require a level of conviction that leaves no reasonable doubt:

It is necessary, but also sufficient, that an amount of security deemed satisfactory according to life experience exists, opposed to which reasonable doubts can no longer be raised.84Federal Supreme Court, BGH NJW 1951, 122 (unofficial translation).  

The Court provided an example that the theoretical and abstract possibilities that the accused is not a perpetrator should not be considered as reasonable doubt and should not obstruct the conviction. German scholar Gerhard Herdegen, former Chief Justice at the Federal Supreme Court of Germany, commented on this decision, stating that ever since, the trial courts carefully differentiate between “reasonable” and “unreasonable,” “concrete” and “abstract.”85Federal Supreme Court, BGH NJW 1951, 122. Gerhard Herdegen, Chief Justice at the German Federal Supreme Court, Bemerkungen zur Beweiswürdigung, NStZ 1987, 193, 196 (unofficial translation by author). Some scholars describe the German standard of proof as reasoned conviction.86Buisman et al., p. 38. Effectively, the standard of proof is the same whether it is called intimate conviction, or reasoned conviction. What really matters is that judges in civil law based systems must always provide reasons justifying their decision.87Discussing the process of decision-making in the civil law system, and in particular the French system, see Jean-Marc Baissus, Common v Continental: A Reaction to Mr Evan Whitton’s 1998 Murdoch Law School Address, 5(4) MURDOCH U. ELECTRONIC J.L. para. 68 (1998); Nagorcka, p. 465. Therein lies the proof of what evidence was considered, the weight ascribed, and the reasoning that led the judge to reach a decision based on his or her inner conviction. By contrast, a verdict in a common law system, whether rendered by a jury or a judge sitting as fact-finder, is simply either guilty or not guilty. No explanation is given or permitted.

Though it is difficult to fully appreciate the complexities of the German criminal procedure in a few pages, especially when attempting to make comparisons and draw distinctions with the common law system or even other civil based systems, Bohlander cogently edifies:

German criminal proceedings are by nature not a contest between parties, but an objective, judge-led inquiry into the material truth of the facts underlying a criminal charge. Equality of arms is not a principle that would apply to a similar extent as it does in adversarial systems. From the German point of view, the prosecution, on the one hand, has no individual rights of a fair trial; it has powers and duties, with the consequence that the prosecution cannot argue a violation of the right to equality of arms because the system is not adversarial, but the court itself is under a duty to find the truth. The Defence, on the other hand, has no duty, only rights, yet it may suffer if it does not exercise them properly, as is the case under the well-known common law ‘save it or wave it’ principle relating to grounds of appeal … The defence is seen as being by definition inferior in power and facilities to the prosecution, so from the German point of view, equality of arms is a principle that protects the defence, but not the prosecution. Any idea of changing the law, for example, by introducing probative burdens of proof on the defence … in order to make it easier for the prosecution to bring its case, would have no equivalent in German doctrine, and indeed, would be seen as constitutionally questionable. Difficulties of the prosecution to prove its case cannot lead to man abridgement of the defence’s position by interpreting down the threshold of certain offence requirements.88MICHAEL BOHLANDER, PRINCIPLES OF GERMAN CRIMINAL LAW, 10 (Hart Publishing 2009).

The Netherlands

In the Netherlands, similar to Germany, the public prosecutor is responsible for conducting the investigations.89Dutch CCP, Section 10.  He or she is responsible for the compilation of the case documents, and must include “all documents which could reasonably be relevant to the decisions to be taken by the court.”90Dutch CCP, Section 149(a)(1)-(2).   The Dutch Supreme Court interpreted the relevancy criteria to include both exculpatory and incriminating evidence.91Dev Sol, HR 7 May 1996, NJ 1996, 687. The Examining Magistrate has supervisory powers over the criminal investigation and can control the work of the public prosecutor.92Dutch CCP, Section 170.  For some investigative acts, such as wiretapping, the public prosecutor must seek authorization from the Examining Magistrate.93Dutch CCP, Section 261(I).   Defense lawyers may also submit investigative requests to the Examining Magistrate.94Dutch CCP, Section 183. The Examining Magistrate is responsible for the completeness and continuity of the investigation and may question witnesses or experts when he or she finds it necessary.95Dutch CCP, Section 185.  Under Dutch criminal procedure, victims may apply for compensation,96Dutch CCP, Section 51(f). have the right to legal representation, and may request the public prosecutor to add documents relevant for the assessment of the case to the case file.97Dutch CCP, Section 51(b).

At trial, the presiding judge determines the order in which he or she will question witnesses, expert witnesses, and the victim(s) present at the court session. If necessary, he or she can take measures to have the various participants in the proceedings taken to separate rooms.98Dutch CCP, Section 288(a).   The public prosecutor presents the case by reading out the indictment.99Dutch CCP, Section 284.  The presiding judge may order the public prosecutor to have specific witnesses and experts called to appear in court.100Dutch CCP, Section 263.  The presiding judge is the first to questions witnesses.101Dutch CCP, Section 292(1).   He or she can then give an opportunity to the prosecution to ask additional questions.102Dutch CCP, Section 292(2).   After that, the defense lawyers are given the opportunity to question the witness and to put forward in rebuttal of the statement of that witness anything that could aid the defense.103Dutch CCP, Section 292(3).   If the witness has not yet been questioned during the preliminary investigation and has been called on application of the defendant, he or she shall first be questioned by the defendant and then by the presiding judge.104Dutch CCP, Section 292(4).   The prosecution may then question the witness.105Dutch CCP, Section 292(5).   Defense lawyers and the prosecution may submit questions at trial to be put to the witnesses by the presiding judge.106Dutch CCP, Sections 271-272.

Section 338 of the Dutch CCP states that the court may convict “only when the court through the hearing has become convinced … from legal means of evidence.”  The Dutch CCP broadly defines the “legal means of evidence” as (i) the court’s own observations (made during the court hearing); (ii) the statements of the defendant; (iii) witnesses’ statements; (iv) expert witnesses’ statements; and (v) written materials.107Dutch CCP, Sections 339(1), 340.  The Dutch CCP specifies that if the court finds that it has not been proven that the accused committed the offence for which he or she has been indicted, the court must acquit the accused.108Dutch CCP, Section 352(1).   The court decision must be reasoned, “based on the content of the means of evidence, incorporating the facts and circumstances on which this decision is based, which are included in the judgment.”109Dutch CCP, Section 359.


The Italian system is somewhat of an anomaly.110See generally Lawrence J. Fassler, The Italian Penal Procedure Code: Adversarial System of Criminal Procedure in Continental Europe, 29 Colum. J. Transnat’l L. 245 (1991) (hereinafter “Fassler”), tracing the history of the Italian criminal process reform and analyzing the new Italian Code of Criminal Procedure.  Though civil law based, it incorporates significant adversarial modalities, setting it apart from the more traditional judge-driven civil law systems.  Italy’s modified system, with a mix of adversarial and inquisitorial procedures, is the quintessence of a civil law based hybrid system.  There is a clear distinction between the investigation and the taking of evidence.  Unlike in other civil law countries, there is no case file containing all of the evidence for the trial.  The investigation is conducted by the parties (the prosecution and defense lawyers) followed by disclosure and the pre-trial hearing on the confirmation of charges.  However, the defense lawyer’s investigation is not supported by compelling power; for any coercive means, defense lawyers have to request the prosecution to act on their behalf as an “impartial party” whose duty is to investigate both incriminating and exculpatory evidence.

The trial judge is isolated from the information gathered during the investigation.  At the end of the investigation, the prosecution files charges before the pre-trial judge.  The pre-trial judge will review the charges during the pre-trial hearing.111Fassler, p. 261-263, describing the preliminary proceedings.  If the pre-trial judge confirms the charges and sends the case to trial, he or she will form a dossier that will contain only few records, such as evidence which is objectively impossible to reproduce in court; evidence that may be lost before trial; records regarding the corpus delicti; and prior convictions of the accused.112Italian CCP, Art. 431.  The pre-trial judge may also direct the prosecutor to “modify” the charges.113Italian CCP, Art. 423.

It is during the trial proceeding that the evidence is taken.  The prosecution and defense lawyers select the witnesses for their cases, but they are still required to seek authorization from the trial judge. When granted, the prosecution and defense lawyers can examine and cross-examine witnesses (including through the use of leading questions).114Italian CCP, Arts. 498-506. The judge can ask clarifying questions or even examine a witness on his or her own.115Italian CCP, Arts. 506-507. Quite adversarial.116For more on the Italian criminal procedure, see William T. Pizzi and Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int. L 1 (1992), addressing the challenges of reforming the Italian criminal procedure, such as judicial backlog, difficulties of implementing the new code, and practical application of the new procedures.

Italy deviates from the classical civil law approach in that it adopts the common law standard of proof beyond a reasonable doubt and puts the burden of proof on the prosecution.117Italian CCP, Art. 533. The judge, being the trier of fact, is free to evaluate the evidence based on “reasonability” criteria.118Italian CCP, Arts. 189, 192.

In sum

“If you would be a real seeker after truth, it is necessary that at least once in your life you doubt, as far as possible, all things.”

René Descartes, Principles of Philosophy

In civil law based systems, the criminal procedure places a high value on the discovery of the truth.119Hervé Pelletier & Jean-Baptiste Thierry, Juris Classeur Procédure Pénale, Arts. 427-57, 10 March 2015, para. 1: “The criminal Judge searches for the material truth.” (unofficial translation by author); Roger Merle & André Vitu, Traité de Droit Criminel, t. 2, Procédure Pénale, n. 115 (Cujas, 2001, 5th ed.): “meaning what is really the truth as he sees it and not what the parties offered as being the truth.” (unofficial translation by author); David S. Clark, Comparing the Work and Organization of Lawyers Worldwide: The Persistence of Legal Traditions, in Lawyers’ Practice and Ideals: A Comparative View 9, 35-69 (J.J. Barceló III & R.C. Cramton eds., Kluwer Law International 1999). The investigation is in the hands of an impartial prosecutor or an investigative judge, whose duty it is to objectively investigate and discover all the facts.  At trial, it is within the exclusive province of the judges to make sure that they have reviewed all relevant evidence that would enable them to get as close to the truth as possible.  Their quest – and theirs alone – is to find the material truth, as opposed to relying on the prosecution to prove its case beyond a reasonable doubt.  Thus, it should come as no surprise that trial judges have considerable control over the criminal proceedings and are not limited to the evidence collected during the investigation or submitted by the parties.

Civil law based systems place the burden of being convinced (as opposed to being persuaded) on the trial judge.  The burden of proof – in the sense of an obligation of either the prosecution or the defense lawyers to produce evidence to persuade the trier of fact, as is the case in common law systems – is dissimilar, or more appropriately, means something different than what is understood by common law lawyers.  The prosecution does have a burden of coming forward with the evidence, but with the judge seeking the material truth, including by means of securing or requesting additional evidence, the burden seems to be on the judge of convincing himself or herself.  At least so it seems from the common law perspective.  As such, the judge is not a mere deliberator of evidence (as common law trier of fact be it jury or judge) but the principal agent, the midwife if you will, in ensuring that all available evidence is gathered and presented in the truth-seeking quest of rendering a verdict based on his or her intimate conviction.

As we have seen for this and the previous post, the systematic differences in common law and civil law based systems, particularly when it comes to the standards and burdens of proofs, significantly impact the roles played by the judges, the prosecution and defense lawyers. Mixing the two systems – as is the norm in the international and internationalized courts – without appreciating these differences results in a system that combines contradicting principles and raises controversial issues. Like the mating of a male donkey (jack) and a female horse (mare), the hybrid systems run the risk of creating a strong, robust mule offspring, which nonetheless can only rarely give birth.

Next & Final Post

In the next post, I will address some of these issues in the context of the international and internationalized hybrid criminal courts.  I will also touch upon some of the jurisprudence from the ECtHR.  I will probe into such issues as: how the standards and burdens of proof are applied in these courts, how the functions are divided between the participants in a criminal trial and who has the burden to meet the imposed standards, how the courts reconcile the controversial issues of hybrid procedures, and how the judges coming from various legal traditions acclimate to the hybrid procedures.  My aim is to provide defense lawyers some thoughts on how to ensure their clients’ fair trial rights when appearing before judges who, despite being well intentioned, conduct the proceedings in a manner that is fundamentally irreconcilable with the adopted Statute and Rules of Procedure and Evidence.

Posts in this series: 

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV




Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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