Part III-B \u2013 Civil Law<\/strong><\/p>\n 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 \u2013 at least in principle, or as a prima facie matter \u2013 as an organizing schema for technical arrangements<\/strong>.((Mirjan Dama\u0161ka, Free Proof and Its Detractors, <\/em>43 Am. J. Comp. L. 343, 347-48 (1995) (hereinafter \u201cDama\u0161ka\u201d). ))<\/p>\n<\/blockquote>\n Civil law based systems, which are also referred to as Romano-Germanic<\/em>, are judge-driven, lacking many of the adversarial features essential to common law systems.\u00a0 I use the plural for \u201csystems\u201d because there is no single and uniform civil law system.\u00a0 Each civil law based system has its own nuances and distinctions.\u00a0 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.\u00a0 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.<\/p>\n Some general observations on the taking of evidence and proofs <\/em><\/strong><\/p>\n 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.\u00a0 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).<\/p>\n 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 \u2013 to a certain extent \u2013 re-characterizing the facts to encompass new or different charges that align more closely with the evidence.((French Code of Criminal Procedure (\u201cCCP\u201d), 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.<\/p>\n 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<\/em>, 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.\u00a0 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.((See, for example, <\/em>German CCP, Section 350 codifying the principle of examination in person.))\u00a0 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.<\/p>\n 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).\u00a0 The judge\u2019s responsibility is expressed in the Latin maxim iura novit<\/em> curia \u2013 <\/em>\u201cthe court knows the law.\u201d((Mattias Derl\u00e9n, Multilingual Interpretation Of European Union Law 314 (Kluwer Law International 2009). ))\u00a0 It reflects the judge\u2019s duty to find the law applicable to the facts presented: da mihi factum, tibi dabo ius \u2013 <\/em>\u201cgive me the facts, and I will give you the law.\u201d((Id. See also <\/em>James R. Maxeiner, Thinking Like a Lawyer Abroad: Putting Justice into Legal Reasoning<\/em>, 11 Wash. U. Global Stud. L. Rev. 55, 85 (2012), discussing the application of the two maxims in the German legal system.))\u00a0 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.\u00a0 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:<\/p>\n 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\u2026.((Julio C. Cueto-Rua, Judicial Methods Of Interpretation Of The Law 30 (The Publication Institute Paul M. Hebert Law Center, Louisiana University 1981). ))\u00a0<\/em><\/p>\n<\/blockquote>\n Conversely, if one of the parties fails to raise an issue, it is the judge\u2019s duty to raise it ex proprio motu <\/em>to prevent the miscarriage of justice.\u00a0 Hence there is no need for making the record by objecting to the evidence \u2013 the judge knows the law and is expected to disregard the irrelevant or unreliable evidence.<\/p>\n 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.\u00a0 In assessing the evidence, \u201c[the judge] must be \u2026 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.\u201d((Stefan Trechsel, Human Rights in Criminal Proceedings 50 (Oxford University Press 2005). ))<\/p>\n Judges are expected to issue the verdict based on their inner convictions, or more precisely, intimate conviction<\/em>.\u00a0 Generally, intimate conviction<\/em> 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. \u00a0The 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.\u00a0 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.((French CCP, Art. 485; German CCP, Section 267.))\u00a0 The judge must justify his or her judgment \u201cfor the benefit of the parties, their lawyers, the bench and bar at large, and the community.\u201d((Julio C. Cueto-Rua, Judicial Methods Of Interpretation Of The Law 36 (The Publication Institute Paul M. Hebert Law Center, Louisiana University 1981). ))\u00a0 The judge knows that his or her \u201cbehavior 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.\u201d((Id.<\/em>))<\/p>\n The in dubio pro reo<\/em> principle is ever-present in the judge\u2019s mind when finally assessing the evidence. The in dubio pro reo <\/em>principle gives the accused the benefit of the presumption of innocence.\u00a0 The judge as the trier of fact must be convinced of the facts establishing the accused\u2019s guilt before he or she can find the accused guilty, by the evidence viewed in the way most favorable to the accused.((Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?<\/em>, 18 B. C. Int\u2019l & Comp. L. Rev. 317, 343-44 (1995) (hereinafter \u201cFrase & Weigend\u201d). ))\u00a0 \u00a0This principle \u2013 intrinsic to the presumption of innocence \u2013 is often implied in legal codes and constitutions.\u00a0 For instance, the French pr\u00e9somption d\u2019innocence <\/em>derives from Article 9 of the 1789 Declaration of the Rights of Man, which has force of the constitutional law and begins with: \u201cTout homme \u00e9tant pr\u00e9sume innocent jusqu’a ce qu’il ait \u00e9t\u00e9 d\u00e9clar\u00e9 coupable\u2026<\/em>(As all persons are presumed innocent until proven guilty….)\u201d((George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, <\/em>77 Yale L. J. 880, 881, note 4 (1967-1968) (hereinafter \u201cFletcher\u201d), citing<\/em> L. Duguit, H. Monnier & R. Bonnard, Les Constitutions De La France Depuis 1789, at 2 (7th ed. 1952). See also <\/em>P. Campbell & B. Chapman, The Constitution Of The Fifth Republic 11 (2d ed. 1959). ))\u00a0 In Germany, scholarly interpretations devise at least six legal rationale for the in dubio pro reo<\/em> principle:<\/p>\n The in dubio pro reo <\/em>principle in conjunction with or as an integral part of the principle of \u201cfree evaluation of evidence\u201d 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.\u00a0 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.<\/em>((An expression by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s.))<\/p>\n Burden of being convinced and intimate conviction<\/em><\/strong><\/p>\n The meaning of the term \u201cburden of proof,\u201d 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 \u2013 or more aptly the state through the public prosecutor \u2013 has a burden of proof that is more akin to a burden of going forward. Effectively<\/em> \u2013 and this would appear to be the operative word for the common law lawyer \u2013 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 \u2013 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.((MOJTABA KAZAZI, BURDEN OF PROOF AND RELATED ISSUES: A STUDY ON EVIDENCE BEFORE INTERNATIONAL TRIBUNALS 26 (Martinus Nijhoff Publishers 1996) (hereinafter \u201cKazazi\u201d). )) 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.<\/p>\n With the burden of persuasion, or more fittingly, the burden of being convinced<\/em> being on the trial judge, the prosecution\u2019s burden is more akin to a burden of production<\/em>, 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<\/em> 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.<\/p>\n As noted, entrusted with the task of getting to the truth, the judge can re-characterize the charges to fit the case at hand.((French 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<\/em> 55, 16 CRIM. L.F. 1, 4-6 (2006), discussing the common and civil law approaches.)) The prosecution\u2019s 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\u2019s 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.<\/p>\n 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.<\/p>\n In German private law, where the proceedings contain adversarial modalities, the concept of the burden of proof is better researched.((Juliane 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 \u201cKokott\u201d), 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). ))\u00a0 German scholars distinguish between the burden of persuading the trier of fact as the objective<\/em> burden<\/em> and the burden of production of evidence as the subjective burden<\/em>.((Kokott, p. 15, referring to Hanns Pr\u00fctting, Gegenwartsprobleme der Beweislast 6-7 (C. H. Beck 1983); Frederick Eisner, Beweislastfragen und Beweisw\u00fcrdigung im deutschen und amerikanischen Zivilprozess<\/em>, 80 Zeitschrift fur Zivilprozess [ZZP], 78, 82 (1967). ))\u00a0 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.\u00a0 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.\u00a0 Calling for more precision in the use of the terms subjective burden of proof<\/em> or burden of producing evidence<\/em>, she explains that because \u201crules on the burden of producing evidence do exist in the German system \u2026 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].\u201d((Kokott, p. 10.))<\/p>\n Rendering a judgment according to the intimate conviction<\/em> 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.((Jean-Marie Fayol-Noirterre, L\u2019Intime Conviction, Fondement de l\u2019Acte de Juger<\/em>, 127 Informations Sociales 46, 46-47 (2005\/7). ))\u00a0 A person\u2019s conduct is judged.\u00a0 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.\u00a0 Instructive is the European Court of Human Rights (\u201cECtHR\u201d) decision in a case against the United Kingdom, even if not directly related to civil law based systems:<\/p>\n The question in each particular case is whether the evidence adduced by the prosecution is sufficiently strong to require an answer.\u00a0 The national court cannot conclude that the accused is guilty merely because he chooses to remain silent.\u00a0 It is only if the evidence against the accused \u201ccalls\u201d for an explanation which the accused ought to be in a position to give that a failure to give any explanation \u201cmay as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty.\u201d\u00a0 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].((<\/em>Murray v. The United Kingdom, App. No. 18731\/91, 8 February 1992, para. 51.))<\/em><\/p>\n<\/blockquote>\n 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.\u00a0 Essentially, in the civil law based systems, the parties\u2019 functions and responsibilities are circumscribed, placing the judges in the proverbial driver\u2019s seat in searching for the truth.\u00a0 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.((David S. Clark, Comparing the Work and Organization of Lawyers Worldwide: The Persistence of Legal Traditions in <\/em>J.J. Barcel\u00f3 III & R.C. Cramton (eds.), Lawyers\u2019 Practice and Ideals: A Comparative View 9, 35-69 (Kluwer Law International 1999), describing the difference in the roles of lawyers worldwide.)) \u00a0Overall, 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.\u00a0 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.<\/p>\n France<\/em><\/strong><\/p>\n In France, the preliminary investigation is conducted by the judicial police under the supervision of the public prosecutor.((French CCP, Arts. 12, 31.)) \u00a0The prosecutor is a public official who represents the \u201cinterests of society\u201d((French CCP, Art. 31.)) and is obliged to search for the truth and investigate all aspects of a crime, including both incriminating and exculpatory evidence.((French CCP, Art. 31.))\u00a0 \u201cThe continental [civil law] prosecutor is not another private party, but the public party, the advocate of the people.\u00a0 This entails a specific ethical duty of acting in the interest of law and justice, and being guided solely by the search for truth.\u201d((See <\/em>Jean-Marc Baissus, Common v Continental: A Reaction to Mr Evan Whitton\u2019s 1998 Murdoch Law School Address<\/em>, 5(4) Murdoch U. Electronic J.L. para. 17 (1998). ))<\/p>\n A suspect has limited access to a lawyer during interrogation in police detention.\u00a0 The defense lawyer\u2019s participation in the investigation process is substantially limited, because \u201c[l]awyers are regarded in this context as obstacles to the discovery of the truth.\u201d((Felicity 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<\/em>, 29 Melb. U. L. Rev. 448, 462 (2005) (hereinafter \u201cNagorcka\u201d). ))\u00a0 On the other hand, a suspect is regarded as a necessary source of information in revealing the truth.((French CCP, Art. 33. See <\/em>Nagorcka, note 33 (2005), referring to Bron McKillop, Anatomy of a French Murder Case 90 (1997). ))<\/p>\n Minor offences (liability for which is less than two month of imprisonment) are investigated entirely by the police and public prosecutor.((French CCP, Art. 63-4.))\u00a0\u00a0 Serious offences (five years of imprisonment or more) must be investigated by the investigative judge (juge d\u2019instruction<\/em>).((French CCP, Art. 70.))\u00a0 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. \u00a0The investigative judge is solely responsible for conducting the investigations, including summoning and questioning witnesses,((French CCP, Arts. 114-119.)) visiting the crime scene,((French CCP, Art. 92.)) obtaining expert reports,((French CCP, Arts. 156-169.)) and taking any other measures useful for the discovery of the truth.((French CCP, Art. 310.))\u00a0 He or she has an obligation to stay neutral and search for both incriminating and exculpatory evidence.((French 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.((French 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).\u00a0 The French system provides for the victim\u2019s participation in the criminal trial as a civil party. Civil parties may request civil remedies by filing a complaint before the investigative judge.((French CCP, Art. 85.))\u00a0 As a party to the proceedings, a civil party has a right to legal representation,((French CCP, Art. 33-1.)) can summon witnesses to appear before the court,((French CCP, Art. 281.)) and can request expert reports.((French CCP, Arts. 156, 167.))<\/p>\n All relevant evidence is collected and placed in the case file, commonly referred to as the dossier<\/em>.((French CCP, Arts. 81-82.))\u00a0 The case file contains all <\/em>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\u2019Assise<\/em>, comprising three judges and six jurors at the trial level, and three judges and nine jurors at the appellate level.(( French CCP, Art. 231.))<\/p>\n The French Code of Criminal Procedure (\u201cCCP\u201d) does not provide for elaborate rules of evidence, compared to those in common law systems (for instance, the US Federal Rules of Evidence).\u00a0 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. \u00a0The 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 \u201cfree evaluation of evidence,\u201d also stems from the professional judge\u2019s ability to determine what constitutes admissible, reliable, and relevant evidence.((See <\/em>Dama\u0161ka, p. 346, discussing the \u201cfree-proof approach\u201d to the admissibility of evidence, its historical development and current application in the civil law systems. See also<\/em> Paul de Hert, Legal Procedures at the International Criminal Court \u2013 A Comparative Law Analysis of Procedural Basic Rights<\/em>, in<\/em> Supranational Criminal Law: A System Sui Generis<\/em> 79, 114 (Roelof Haveman et al. eds., Intersentia 2003); Caroline Buisman, Myriam Bouazdi & Matteo Costi, Civil Law Rules of Evidence<\/em>, in <\/em>Karim A. A. Khan, Caroline Buisman & Chris Gosnell (eds.), Principles of Evidence in International Criminal Justice 34 (Oxford University Press 2010) (hereinafter \u201cBuisman et al.\u201d). ))<\/p>\n Where a jury is guided by three professional judges, as with the Cour d\u2019Assise<\/em>, 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.<\/p>\n 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:<\/p>\n 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<\/em> the last word.((Nagorcka, p. 458-459.))<\/p>\n<\/blockquote>\n A defense lawyer\u2019s role is mainly limited to suggesting additional witnesses to be heard,((French CCP, Arts. 281, 324, 329.)) suggesting additional questions to be asked after a witness has given his or her statement,((French CCP, Art. 332.)) and making eloquent allocutions akin to closing arguments. \u00a0According 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\u2019s fair trial rights are not being infringed:<\/p>\n In most instances, the <\/em>avocat does not challenge the pre-trial dominance of the <\/em>juge d\u2019instruction, 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.((Jacqueline Hodgson, <\/em>The Role of the Criminal Defence Lawyer in an Inquisitorial Procedure: Legal and Ethical Constraints, 9 Legal Ethics 125, 135 (2006). ))<\/em><\/p>\n<\/blockquote>\n After the trial is concluded, the judges are expected to consider and render a verdict based on their intimate conviction<\/em>.((French CCP, Art. 353.))\u00a0 Before the deliberation on the verdict, the presiding judge reads an instruction to the jurors explaining intimate conviction<\/em>:<\/p>\n 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?((French CCP, Art. 353, (unofficial translation from legifrance.gouv.fr.) ))<\/em><\/p>\n<\/blockquote>\n In the Cour d\u2019Assise<\/em>, 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.((Nagorcka, p. 461, citing <\/em>Mirjan Dama\u0161ka, Structures of Authority and Comparative Criminal Procedure<\/em>, 84 Yale L.J. 480, 493 (1975). )) \u00a0Consistent with the principle of \u201cfree evaluation of evidence,\u201d the judge will decide what kind of evidence he or she will accept, and what weight, if any, it will be given. \u00a0The in dubio pro reo<\/em> principle also applies.\u00a0 In France, this principle is derived directly from the presumption of innocence.((French CCP, Art. 485.))\u00a0 Moreover, since the law amendment in 2011 in order to comply with the ECtHR, the judges of the Cour d\u2019Assise<\/em> must provide reasons justifying their decision.((See Agnelet v. France<\/em>, App. No. 61198\/08, 10 January 2013, para. 71, finding a violation of Art. 6, inter alia,<\/em> because \u201cthe applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty.\u201d\u00a0 See also<\/em> Papon v. France<\/em>, App. No. 54210\/00, 15 December 2001, para. 6(f): \u201caccording 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.\u201d))\u00a0 Thus, the obligation to justify the decision and adequately explain the reasons on which the decision is based limits the judge\u2019s freedom in evaluating the evidence, making such a decision appealable to a higher court.<\/p>\n Germany<\/em><\/strong><\/p>\n In Germany, investigations of serious offences are carried out by the public prosecutor.((German CCP, Section 170(1). )) \u00a0For this purpose, the public prosecutor has broad powers: he or she interrogates the suspect((German CCP, Section 163(a). )) and summons and interrogates witnesses, including experts.((German CCP, Section 161(a). ))\u00a0 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.((Frase & Weigend, p.\u00a0 325.))<\/p>\n 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.\u00a0 This provision of the CCP gave rise to the saying that the public prosecution office is \u201cthe most objective authority in the world.\u201d((Shawn 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, <\/em>UNAFEI Annual Report for 2001 and Resource Material Series No. 60, pp. 58-76, 59 (2003). )) \u00a0The idea of the prosecution being a neutral part of the legal system is still upheld in Germany, in theory.\u00a0 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 \u2013 if it ever were. In practice, things are much more adversarial than they should be.\u00a0 Some recent critical studies of the German prosecution practices have argued that prosecutors have abandoned the role of objective decision-makers.((See <\/em>Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law? (Springer 2014). ))\u00a0 According to Eberhard Siegismund, Deputy Director General in the Judicial System Division, Federal Ministry of Justice, \u201cthe public prosecution office is, however, not infrequently said, as the \u2018cavalry of the law,\u2019 to demonstrate a certain \u2018dashing spirit\u2019 and is thus thought to be blind in its enthusiasm for prosecution.\u201d((Eberhard Siegismund, The Public Prosecution office in Germany: Legal Status, Functions and Organization, <\/em>UNAFEI Annual Report for 2001 and Resource Material Series No. 60, pp. 58-76, (2003). ))<\/p>\n During the pre-trial phase, defense lawyers are allowed to access and examine the prosecution\u2019s file.((German CCP, Section 147.))\u00a0 Defense lawyers are not prohibited from carrying out private investigations, but they have no means of compulsion.\u00a0 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.((German CCP, Section 163a(2). )) \u00a0Suspects 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.((German CCP, Sections 136(1), 163a(3). ))\u00a0 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.((BGHSt 38, 214 (1992). ))<\/p>\n The concept of excluding otherwise relevant evidence is not foreign to the German criminal justice system.\u00a0 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\u2019 or witnesses\u2019 statements obtained by force or coercion.\u00a0 There are rules regarding the private information that is deemed inadmissible at trial against the accused. \u00a0Nevertheless, if the interests of community prevail, the court must use this evidence.((Frase & Weigend, p. 335-336, citing <\/em>BVerfGE 367, 373-76 (1989). )) \u00a0Evidence obtained in violation of the laws, for instance, due to police misconduct, may also be excluded.\u00a0 However, \u201cGerman courts tend to balance the interests involved, the importance of the evidence for finding a judgment, and the seriousness of the violation\u2026. [F]ruits of illegal searches and wiretaps are often admitted into evidence.\u201d((Frase & Weigend, p. 336.))\u00a0 The trial judge is familiar with the case file and will have the information about any legally inadmissible evidence.\u00a0\u00a0 Since the judge is the trier of fact, he or she is expected to \u201cforget\u201d about this information and cannot rely on it in rendering a verdict.<\/p>\n At trial, the presiding judge conducts the taking of evidence and examination of witnesses.((German CCP, Section 238(1). ))\u00a0 After the presiding judge has questioned the witnesses, the parties may examine them and ask additional questions.(( German CCP, Section 239.))\u00a0 Defense lawyers play a more active role in the sense that they can examine the prosecution\u2019s witnesses.((German CCP, Sections 239, 240.)) \u00a0Michael Bohlander observes, \u201c[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\u2026.\u201d((Michael Bohlander, The Need for Revisiting the Conversation Between Common and Civil Law at Root Level at the Example of International Criminal Justice<\/em>, 24 Leiden J. Int\u2019l L. 393, 396 (2011). )) \u00a0Ultimately, regardless of the activity (or inactivity) of the party, the court is responsible, ex proprio motu<\/em>, for taking all of the evidence \u201cin order to establish the truth.\u201d((German CCP, Section 244.)) \u00a0Unlike in common law systems, the taking of evidence cannot be refused simply because the evidence was submitted too late.((German CCP, Section 246(1). ))\u00a0 If this is the case, the opposing party may apply to postpone the hearing in order to gather the necessary information.((German CCP, Section 246(2). ))<\/p>\n At the trial hearing, the documentary evidence is read out, including the previous criminal judgments and records.((German CCP, Section 249.))\u00a0 If the proof of a fact is based on the observation of a witness, there is a preference for viva voce <\/em>testimony rather than reading out the record of a previous examination or reading out a written statement.((German CCP, Section 250.))\u00a0 After the taking of evidence has been concluded, the prosecutor and the defense lawyers are allowed to present their arguments.((German CCP, Section 258.))<\/p>\n In Germany, the in dubio pro reo<\/em> principle was applied well before the presumption of innocence was recognized.((In 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 <\/em>Ratifying law of August 7, 1952, [1952] Bundesgesetzblatt [BGBl.] II 685, 953. ))\u00a0 The verdict is decided \u201con the result of the evidence taken according to its free conviction gained from the hearing as a whole.\u201d((German CCP, Section 261.))\u00a0 The judge\u2019s conviction of the defendant\u2019s guilt \u201cmust be subjective and must be based on persuasive factors which leave no room for reasonable doubt.\u201d((Frase & Weigend, p. 344. ))\u00a0 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:<\/p>\n 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.((Federal Supreme Court, BGH NJW 1951, 122 (unofficial translation). \u00a0))<\/em><\/p>\n<\/blockquote>\n 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 \u201creasonable\u201d and \u201cunreasonable,\u201d \u201cconcrete\u201d and \u201cabstract.\u201d((Federal Supreme Court, BGH NJW 1951, 122. Gerhard Herdegen, Chief Justice at the German Federal Supreme Court, Bemerkungen zur Beweisw\u00fcrdigung, NStZ 1987, 193, 196 (unofficial translation by author). )) Some scholars describe the German standard of proof as reasoned conviction<\/em>.((Buisman et al., p. 38.)) Effectively, the standard of proof is the same whether it is called intimate conviction<\/em>, or reasoned conviction<\/em>. What really matters is that judges in civil law based systems must always provide reasons justifying their decision.((Discussing 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\u2019s 1998 Murdoch Law School Address<\/em>, 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.<\/p>\n 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:<\/p>\n 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 \u2018save it or wave it\u2019 principle relating to grounds of appeal \u2026 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 \u2026 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\u2019s position by interpreting down the threshold of certain offence requirements.((MICHAEL BOH<\/em>LANDER, PRINCIPLES OF GERMAN CRIMINAL LAW, 10 (Hart Publishing 2009). ))<\/p>\n<\/blockquote>\n The Netherlands<\/em><\/strong><\/p>\n In the Netherlands, similar to Germany, the public prosecutor is responsible for conducting the investigations.((Dutch CCP, Section 10.)) \u00a0He or she is responsible for the compilation of the case documents, and must include \u201call documents which could reasonably be relevant to the decisions to be taken by the court.\u201d((Dutch CCP, Section 149(a)(1)-(2). ))\u00a0 The Dutch Supreme Court interpreted the relevancy criteria to include both exculpatory and incriminating evidence.((Dev Sol<\/em>, 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.((Dutch CCP, Section 170.)) \u00a0For some investigative acts, such as wiretapping, the public prosecutor must seek authorization from the Examining Magistrate.((Dutch CCP, Section 261(I). ))\u00a0 Defense lawyers may also submit investigative requests to the Examining Magistrate.((Dutch 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.((Dutch CCP, Section 185.))\u00a0 Under Dutch criminal procedure, victims may apply for compensation,((Dutch 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.((Dutch CCP, Section 51(b). ))<\/p>\n 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.((Dutch CCP, Section 288(a). ))\u00a0 The public prosecutor presents the case by reading out the indictment.((Dutch CCP, Section 284.))\u00a0 The presiding judge may order the public prosecutor to have specific witnesses and experts called to appear in court.((Dutch CCP, Section 263.))\u00a0 The presiding judge is the first to questions witnesses.((Dutch CCP, Section 292(1). ))\u00a0 He or she can then give an opportunity to the prosecution to ask additional questions.((Dutch CCP, Section 292(2). ))\u00a0 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.((Dutch CCP, Section 292(3). ))\u00a0 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.((Dutch CCP, Section 292(4). ))\u00a0 The prosecution may then question the witness.((Dutch CCP, Section 292(5). ))\u00a0 Defense lawyers and the prosecution may submit questions at trial to be put to the witnesses by the presiding judge.((Dutch CCP, Sections 271-272.))<\/p>\n Section 338 of the Dutch CCP states that the court may convict \u201conly when the court through the hearing has become convinced \u2026 from legal means of evidence.\u201d\u00a0 The Dutch CCP broadly defines the \u201clegal means of evidence\u201d as (i) the court\u2019s own observations (made during the court hearing); (ii) the statements of the defendant; (iii) witnesses\u2019 statements; (iv) expert witnesses\u2019 statements; and (v) written materials.((Dutch CCP, Sections 339(1), 340.))\u00a0 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.((Dutch CCP, Section 352(1). ))\u00a0 The court decision must be reasoned, \u201cbased 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.\u201d((Dutch CCP, Section 359.))<\/p>\n Italy<\/em><\/strong><\/p>\n The Italian system is somewhat of an anomaly.((See generally <\/em>Lawrence J. Fassler, The Italian Penal Procedure Code: Adversarial System of Criminal Procedure in Continental Europe<\/em>, 29 Colum. J. Transnat\u2019l L. 245 (1991) (hereinafter \u201cFassler\u201d), tracing the history of the Italian criminal process reform and analyzing the new Italian Code of Criminal Procedure.))\u00a0 Though civil law based, it incorporates significant adversarial modalities, setting it apart from the more traditional judge-driven civil law systems.\u00a0 Italy\u2019s modified system, with a mix of adversarial and inquisitorial procedures, is the quintessence of a civil law based hybrid system.\u00a0 There is a clear distinction between the investigation and the taking of evidence.\u00a0 Unlike in other civil law countries, there is no case file containing all of the evidence for the trial.\u00a0 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.\u00a0 However, the defense lawyer\u2019s 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 \u201cimpartial party\u201d whose duty is to investigate both incriminating and exculpatory evidence.<\/p>\n The trial judge is isolated from the information gathered during the investigation.\u00a0 At the end of the investigation, the prosecution files charges before the pre-trial judge.\u00a0 The pre-trial judge will review the charges during the pre-trial hearing.((Fassler, p. 261-263, describing the preliminary proceedings.))\u00a0 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<\/em>; and prior convictions of the accused.((Italian CCP, Art. 431.))\u00a0 The pre-trial judge may also direct the prosecutor to \u201cmodify\u201d the charges.((Italian CCP, Art. 423.))<\/p>\n It is during the trial proceeding that the evidence is taken.\u00a0 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).((Italian CCP, Arts. 498-506.)) The judge can ask clarifying questions or even examine a witness on his or her own.((Italian CCP, Arts. 506-507.)) Quite adversarial.((For more on the Italian criminal procedure, see <\/em>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<\/em>, 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.))<\/p>\n 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.((Italian CCP, Art. 533.)) The judge, being the trier of fact, is free to evaluate the evidence based on \u201creasonability\u201d criteria.((Italian CCP, Arts. 189, 192.))<\/p>\n In sum<\/strong><\/p>\n \u201cIf 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.\u201d<\/strong><\/p>\n Ren\u00e9 Descartes, Principles of Philosophy<\/em><\/p>\n<\/blockquote>\n In civil law based systems, the criminal procedure places a high value on the discovery of the truth.((Herv\u00e9 Pelletier & Jean-Baptiste Thierry, Juris Classeur Proc\u00e9dure P\u00e9nale<\/em>, Arts. 427-57, 10 March 2015, para. 1: \u201cThe criminal Judge searches for the material truth.\u201d (unofficial translation by author); Roger Merle & Andr\u00e9 Vitu, Trait\u00e9 de Droit Criminel, <\/em>t. 2, Proc\u00e9dure P\u00e9nale, n. 115 (Cujas, 2001, 5th ed.): \u201cmeaning what is really the truth as he sees it and not what the parties offered as being the truth.\u201d (unofficial translation by author); David S. Clark, Comparing the Work and Organization of Lawyers Worldwide: The Persistence of Legal Traditions<\/em>, in <\/em>Lawyers\u2019 Practice and Ideals: A Comparative View 9, 35-69 (J.J. Barcel\u00f3 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.\u00a0 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.\u00a0 Their quest \u2013 and theirs alone \u2013 is to find the material truth, as opposed to relying on the prosecution to prove its case beyond a reasonable doubt.\u00a0 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.<\/p>\n Civil law based systems place the burden of being convinced (as opposed to being persuaded) on the trial judge.\u00a0 The burden of proof \u2013 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 \u2013 is dissimilar, or more appropriately, means something different than what is understood by common law lawyers. \u00a0The 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. \u00a0At least so it seems from the common law perspective.\u00a0 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.<\/em><\/p>\n As we have seen for this and the previous post<\/a>, 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 \u2013 as is the norm in the international and internationalized courts \u2013 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.<\/em><\/p>\n Next & Final Post<\/em><\/strong><\/p>\n In the next post, I will address some of these issues in the context of the international and internationalized hybrid criminal courts.\u00a0 I will also touch upon some of the jurisprudence from the ECtHR.\u00a0 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.\u00a0 My aim is to provide defense lawyers some thoughts on how to ensure their clients\u2019 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.<\/p>\n Posts in this series:\u00a0<\/strong><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof<\/a><\/p>\n Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo<\/em><\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof,\u00a0Part III-A \u2013 Common Law<\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B \u2013 Civil Law<\/a><\/p>\n Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV<\/a><\/p>\n\n
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<\/a>In this post I follow up on my discussion on the common and civil law approaches to the standards and burdens of proofs. \u00a0I 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<\/em> 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.\u00a0 The specialist in any of these jurisdictions may find my generalizations bordering on the simplistic.\u00a0 Fair enough.\u00a0 My aim is not to get into the weeds, but to take a bird\u2019s eye view of these various systems, particularly when it comes to the standards and burdens of proofs \u2013 terms which, in civil law based systems, do not necessarily apply or accurately reflect these concepts as understood in common law systems.\u00a0 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.\u00a0 Relating to the judge\u2019s 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<\/em> 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.<\/p>\n\n
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<\/a>As 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.<\/p>\n\n
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