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Evidence Law/ The Law of evidence

Marek FRYSTAK
Department of Criminal Law
Selected problems of Czech Criminal Law, 9th. Dec. 2015

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General Information
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nwritten law  included in the Criminal Procedure Code (CPC)
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nall those provisions represent a certain instruction of rational steps of investigative,
prosecuting and adjudicating bodies  (IPA bodies) when preparing the factual basis of their
decision
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nthe primary source of (not only) criminal law  is the law
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nstate authority may be asserted only in cases and within the bounds provided for by law and only
in the manner prescribed by law
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nIPA bodies are state authorities and can exercise in  criminal proceedings  only what the law
allows them
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n
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nin making decisions, (not only) judges are bound only by statutes and treaties which form a part
of the legal order
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npolitics, confession, momentary good or bad mood, family well-being, tiredness  etc.
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njudicial decisions (case law) are not the source of law
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nwhy the courts use them and base on them their decisions?
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nrespect the legal certainty of citizens based on the fact that the courts in factually similar
cases decided in a similar way
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nif the courts decides the case without applied  judicial decisions is real  appeal  court
overrule this decision
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Evidence
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nevidence means action (activity) of IPA bodies regulated in CPC the objective of which is to loop
up evidence, produce such obtained evidence and to check and assess the obtained evidence
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nevidence represents the only way in which IPA bodies may and must obtain the factual basis for its
decision or for further actions
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Basic Phases of Evidence
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nsearching for evidence - an obligation of all IPA bodies to search for anything that may be used
as a mean of evidence and which may contribute to clarification of the case
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ne.g. questioning of the accused, questioning of the witness, examination of the scene of crime
etc.
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nproducing and procedural taking of evidence - an obligation of IPA bodies to produce all found
items of evidence and to take them procedurally
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ne.g.  examination of the scene of crime itself and its taking in the form of a report on
examination of the scene of crime, including a plan or sketch of the scene of crime, making video
and audio documentation etc.
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nchecking and assessing the evidence - an obligation of IPA bodies to check each found evidence in
details and subsequently also in mutual relations between items of evidence
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nreliability of evidence
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nthe witness is advised to tell the truth but  he is lying  (it his reliable?)
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ncorrect and due performance of the check is a basic prerequisite of an objective assessment of
evidence
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Basic Principles of Evidence
Presumption of Innocence Principle
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nuntil guilt is declared in a final and conclusive sentencing judgment, the one against whom the
criminal proceedings is conducted may not be considered guilty
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nif there are any doubts about guilt of the accused and those can't be successfully removed by
producing other evidence then it is necessary to decide for the benefit of the accused  - principle
in dubio pro reo
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npractical reaction of IPA bodies
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n„I am celar and sure about your guilty and evidence restrain me“
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nin order to sentence the accused, his guilt must be proven as the accused is not obliged to prove
his innocence or more precisely to prove any fact important for criminal proceedings
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nnemo tenetur se ipsum accusare,  privilege against self-incrimination
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nno conclusion regarding guilt may be deduced from activity or passivity  of accused
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naccused  may remain silent and totally passive (it is  his fundamental right)
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Searching Principle
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nIPA bodies are obliged to ascertain ex officio facts testifying for the benefit as well as to the
detriment of the accused
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ne.g on the basis of their official duty and they do not wait for any activity/motion of the
parties
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n„indictment deviation“
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nthe accused may suggest production of a certain time of evidence
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ne.g. clarification of a fact which is important in terms of his guilt and which may even testify
for his benefit
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nevidence can not be rejected just because it suggested  by the accused
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Verbal Principle
nhearing before court is verbal
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nevidence in the form of testimony of witnesses, experts and the accused is usually produced by
interrogation of those persons
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nthere is an opportunity to produce evidence by reading a record of prior questioning of
accused/witness if
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nhe  refuse to give a testimony before court
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nis in relation to the accused his sibling, adoptive parents, adoptive child, spouse, partner or
common law husband
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n
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nthere are differences in their current and original testimony
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nit does not mean that an accused/witness  is lying (ability to remember after a long time period)
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nthe witness testimony does not agree with  the accused  testimony
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nin order to find the reliability of evidence is necessary to remove these distortions
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Principle of Directness
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nwhen making a decision in the trial the court may consider only such evidence which was produced
during the trial
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nthe rule of impossibility to change members of the court according to which only the judge who was
present at the trial from its beginning until its end may render decision
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nwitness testifies in favor of the accused but quite obviously he is sweating or nervous (lets ask
why ?) - the reliability of evidence
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n
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nthe rule of impossibility to postpone the trial  supposed to ensure that the court decides on the
basis of perceptions following from facts learnt in the performed trial
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nhowever this does not mean that it would be impossible to postpone the trial in special cases
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ne.g. due to the provision of further evidence
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Principle of Discretionary Weighing of Evidence
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nIPA bodies weigh the evidence according to their internal belief based on careful consideration of
all circumstances of the case individually as well as in their aggregate
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nis built on the internal belief of IPA bodies which is not created as a manifestation of
subjective arbitrariness
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nit means strictly logically, based on the legal order, legal awareness, universal and logical
weighing of evidence as well as the context of cases, it must result in a belief about whether and
how a certain act happened and how it should be legally assessed
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nin  the court  decision must be specified
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nwhich facts it considers proven, which evidence it used as a basis of its factual findings, the
existence of which facts it considers doubtful and what are the results thereof and which
considerations the court follows
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nonly such decision is reviewable and may be appealed
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Principle of Ascertaining Facts Free of Justified Doubts
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nindividual facts must be proven only in the extent necessary for a decision in terms of
ascertaining the facts of the case for a specific decision
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nCPC does not include the principle of the so-called objective truth which allows the court, when
rendering its decision, to be satisfied with such facts of the case which both parties jointly
recognize proven
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nwhat is the truth and it is possible to ascertain the truth objective or subjective
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nwhose truth is correct – yours or mine
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nin making decisions judges are bound only by statutes and treaties …. all citizens may do that
which is not prohibited by law
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nconfession of the accused does not release  IPA bodies from the obligation to examine all
important circumstances of the case
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nthe accused  may defend in any way – possibility to give false testimony
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The Subject of Evidence - three basic types of facts
ncircumstances important for the meritorious decision
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ne.g. circumstances forming the elements of an offence which is allegedly the prosecuted act,
circumstances suggesting or disproving that the offender is the accused, circumstances important in
terms of imposing a certain measure on the accused
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ncircumstances important for further actions in the criminal proceedings
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ne.g. circumstances justifying  postpone of a trial, suspension of criminal prosecution, refusal of
the obligation to testify
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ncircumstances that resulted in criminal activity or allowed its committing and circumstances
important for the decision on assertion of a claim for damages
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n
n
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The scope of evidence
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nin the necessary extent must be proven
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nwhether the act regarded as an offence was committed
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ne.g. whether the act was committed at all, the manner of its committing, circumstances of its
committing as well as circumstances excluding unlawfulness of the act
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ne.g. extreme emergency, self-defence, approval of the injured, admissible risk or authorized use
of a weapon
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nwhether the act was committed by the accused, identification of specific offender (state authority
person, soldier the mother of a newborn baby), his age (adult, juvenile) as well as motive
(vengeance, greed)
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nimportant circumstances affecting assessment of the nature and seriousness of the act but also
reasons excluding unlawfulness
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ne.g. the statute of limitations, effective regret
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ncircumstances important in terms of assessment of offender's personal background (facts describing
the personality of the offender)
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nimportant circumstances allowing to determine effects and the amount of damage caused by the
offence
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ne.g. asking for assessment of damage or examining whether the damage has not been compensated
nminimum is  5.000,- CZK
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The facts which cannot be proven
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nit is not necessary to prove facts which are considered true on the basis of general human
experience and there are no doubts about them
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nshould any doubts about those facts occur they would naturally be a subject of evidence
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ne.g. the accused was sane, a document delivered to an IPA bodies  comes from the person specified
therein as the sender or at 8:00 PM in the summer is still sunshine
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nthose facts on which a decision was rendered in a manner binding on IPA bodies or on which other
bodies than IPA bodies can decide
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nlegal regulations of the Czech Republic published or notified in the Collection of Laws and
international treaties published in the Collection of International Treaties
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nlegal regulation published or notified in the Official Journal of the European Union
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nthe court knows the law (iura novit curia)
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nregulations which are not published in the Collection of Laws/Official Journal and therefore they
are not generally known are the subject of evidence
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ne.g.  various statutes, articles or measures
nnot EU law is subject of evidence  (documentary evidence)
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The Means of Evidence
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nanything which may contribute to clarification of the case may be used as evidence
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ne.g. particular testimonies of the accused and witnesses, expert opinions, objects and documents
important for criminal proceedings and examination (exhaustive list)
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neach party of the criminal proceedings may look up and submit such evidence or suggest its
producing  - consequence of the equality of arms (only in trial)
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nthe fact that evidence was not looked up or requested by an IPA bodies  does not justify refusal
of such evidence
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Illegal evidence
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neach item of evidence must be looked up, produced, procedurally taken and assessed in accordance
with the law
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nif not it would be obtained in conflict with law, it means it is illegal evidence
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nsuch evidence de facto exists but it cannot be used and it must be regarded as if it did not exist
at all
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nCPC does not include any positive definition of the term of illegal evidence
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nevidence obtained by illegal coercion or threat of such coercion must not be used in criminal
proceedings
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nillegal coercion may take several forms, most frequently the form of physical and psychic coercion
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nsuch evidence suffers of a substantial defect which cannot be removed in any way during criminal
proceedings and hence it may not be used within the proceedings (absolute ineffectiveness)
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nrelative ineffectiveness can be removed during criminal proceedings – e.g. deprivation  of
confidentiality of witness
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nillegal evidence may be used only as evidence against the person who applied such coercion or
threat of coercion
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Fruit of the poisoned tree theory
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nif the first evidence is obtained illegally how is it with the legality of other evidence obtained
on the basis of this evidence?
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nif the tree is poisoned it means all its fruits are poison
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nif the first evidence is illegal all other evidence obtained on the basis of this evidence is
illegal
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nduring illegal house search was obtained bank account number of the accused under which was
requested bank information in accordance with the law
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nall obtained evidence is illegal
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neven if the tree is poisoned it does not mean all its fruits are poison
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nif the first evidence is illegal it is does not mean all other evidence obtained on the basis of
this evidence is illegal
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nduring illegal house search was obtained bank account number of the accused under which was
requested bank information in accordance with the law
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nevidence obtained during house search is illegal, bank information is legal
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napplication practice accepts both approaches – depends on significance of the evidence
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Examination of accused
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nright but not the obligation to testify and comment on all the facts
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nobligation to obey the warning to attend the IPA bodies
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ndefend in any way – possibility to give false testimony
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ncriminal liability for false accusation
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npossibilities how to ensure the presence of the accused to the acts of criminal proceedings
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nsummons of the accused  (volunteered to come)
nre-imposing a disciplinary penalty  up to 50.000,- CZK
nbringing the accused  (against his will)
narrest warrant
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nthere are grounds for custody  but can not summons/bring  of the accused
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ntaking into custody
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nescape abroad or hiding in the Czech republic (preventive custody) influencing witnesses
(collusive custody) and continuation of the crime (protective custody)
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Examination of witness
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nobligation to testify
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n„the evidence which I shall give shall be the truth, the whole truth, and nothing but the truth“
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nthe witness does not testify under oath but he is advised to tell the truth
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nobligation to obey the warning to attend the IPA  bodies
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nright to refuse testimony if the witness  - necessity to be adviced
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nhas duty not to disclose/ pledge of confidentiality
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nhe may  be testified only if he is deprived of this obligation
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nis in relation to the accused his sibling, adoptive parents, adoptive child, spouse, partner or
common law husband
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n CPC prefer protection of the family relationship
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ncan cause the criminal prosecution itself or next of kin (sibling, adoptive parents, adoptive
child, spouse, partner or common law husband) or other members in family (cousin, aunt, uncle) or
cause them harm, that he feels like  own harm
n
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npossibilities how to ensure the presence of the witness to the acts of criminal proceedings
n
nsummons of the witness (volunteered to come)
n
nre-imposing a disciplinary penalty
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nbringing the witness (against his will)
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n
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Special Methods of Evidence
nevidence as a procedural activity is very closely related to criminalistics
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ncriminalistic procedures and methods are directly presented when searching for, taking and using
various means of evidence
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nCPC regulates  only some of them
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nit does not mean if a certain criminalistic method is not regulated in CPC it is illegal and
therefore inadmissible from the procedural point of view
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nthe following methods are closely related with principle of ascertaining facts free of justified
doubts
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nthe reliability of evidence – where is the „true“?
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n
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Confrontation
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nif the testimony of the accused does not conform to the testimony of a witness or accomplice in
significant aspects, the accused can be confronted with the witness of the accomplice face to face
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nif the testimony of a witness does not conform to the testimony of the accused or another witness,
the witness can be confronted with the accused or another witness face to face
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n
n
n
n
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Recognition/identification
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nthe recognition shall be carried out should it be important for the criminal proceedings that the
suspect, accused or witness repeatedly recognizes the person or thing and herewith establish his
identity
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nshould the person be recognized, he shall be shown among at least three persons who do not differ
considerably
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nif is it not be possible to show the person who shall be recognized, the recognition shall be
carried out on the basis of a photography which is submitted with similar pictures of at least
three other persons
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nif the thing should be recognized it shall be showed in a group of things preferably of the same
kind
n
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Investigatory Experiment
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nthe investigatory experiment is carried out if the circumstances ascertained in the criminal
proceedings, eventually the new circumstances significant for the criminal proceedings, are to be
verified or specified, by observation under artificially created or permutated conditions
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nwas it possible to shot the victim in that distance?
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ncould witness actually to see the accused?
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n
n
n
nThanks for your attention
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nQuestions…???
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nDoc. JUDr. Marek Frystak, Ph.D.
nassistant professor
nDepartment of Criminal Law
nFaculty of Law - Masaryk University
nVeveří 70
n611 80 Brno
nThe Czech republic
nTel. + 420 549 493 870, Fax. + 420 541 213 162
nE-mail: Marek.Frystak@law.muni.cz
n
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