Procedure Flashcards
What is rationalist theory
The rationalist theory emerged as a major change in Western thought occurred. This was a change from the pre-modernist approach of seeing knowledge as flowing from some higher authority, developing in the 17th century, to the belief in the power of humans to know and shape the world. The rationalist thesis that emerged is that finding the truth about the alleged facts of a case is the primary goal of fact-finding. The basis of this theory is the ‘holy trinity’ of truth reason and justice. It provides that, if you get the truth and apply reason to that truth, then the outcome will be justice.
Procedural aspects
Passive Adjudication
Party Autonomy
Standards of Proof / Simple Majority
Witness Testimony
Orality of testimony
Lay adjudication
Fairness
Who said what about adversarial system
Damaska:
The adversarial mode of proceeding takes its shape from a contest or dispute: it unfolds as an engagement of two adversaries before a relatively passive decision maker whose principal duty is to reach a verdict. The non-adversarial mode is structured as an official inquiry. Under the first system, the two adversaries take charge of most of the procedural action; under the second, officials perform most of the activities.
Who said what about passive adjudicator
Lord Just-Clerk Thomson suggests that judges flatter themselves by thinking their function is the ascertainment of truth. He finds that is only so in a very limited sense and, particularly in criminal cases, it is a trial of skill between opposing parties, conducted according to the recognised rules.
Passive adjudication (AA systems)
In Anglo-American proceedings adjudicators are expected to adopt a passive role and remain aloof from the dust of the arena. This is especially true of judges and sheriffs in jury trials, lest they impinge on the jury’s autonomy by signalling their views. No power to investigate, choose witnesses, or call for information not presented to them. Questions limited to clarifying points either for themselves or where applicable for the jury. Adjudicators must declare a winner, while judges must ensure fair play through upholding procedural, evidential and ethical rules so no one gains an unfair advantage. This secondary role, especially in relation to the exclusion of inadmissible evidence, means judges are more than a mere umpire. Nevertheless their role is far removed from that of the continental judge.
Passive Adjudicator (Continental)
Under a continental inquisitorial model, exemplified by criminal proceedings, states direct interest in the outcome means that the judiciary actively engages in all aspects of fact-finding. Once proceedings have started, judges control the search for information, decide which witnesses to question, question witnesses before trial, control proceedings at trial and decide the outcome (ensuring a degree of judicial objectivity).
Passive role and RT
This passive role is thought to promote the finding of the truth. This is because it requires competing parties to persuade the neutral arbiter. This is said to ensure the discovery of more information and prevent fact finders from jumping to conclusions before encountering all the potential evidence.
Analysis passive adjudicator
However, it may be argued that this passive role of adjudication is a failure to take advantage of sources of the state. Judges, for example, are very highly educated and well versed in legal issues. They are required to have years of legal experience. Therefore, arguably their role within fact finding could be better used in the goal of using their knowledge and expertise on legal matters to understand the significance or insignificance of particular facts in an attempt to find the truth.
Party autonomy continental
Party control over fact investigation and proof is limited, particularly in criminal cases. Apart from bringing disputes to state notice, parties are more ‘the object of the inquiry rather than the subject of the action.’
Witnesses are regarded as evidentiary sources of the bench rather than the parties and only questioned by the latter after they have first relayed their evidence in a relaxed informal way and had it judicially tested, albeit in a more relaxed manner than adversarial cross-examination, in order to clarify points or evince additional information.
Parties or their lawyers may suggest further avenues for investigation, but the bulk of information gathering and testing is performed by the judge with the parties’ lawyers largely confined to protection their clients rights to a fair trial.
Factual and legal arguments are far less partisan and rhetorical than is characteristic of adversarial advocacy.
Party Autonomy (AA)
In Scotland, fact investigation and presentation is left almost entirely to the partis. It is the parties responsibility to trigger procedural and evidential mechanisms and to challenged the admissibility of unfavourable evidence or undermine its persuasiveness through cross examination. This is perhaps limiting on the goal being truth-finding. As parties themselves set the issues through the pleadings and can agree the existence or non-existence of facts.. This does not have connotations of finding the truth, as in reality it seems parties are more concerned only concerned with persuading the trier of fact to their narrative. There is no responsibility to something higher i.e. finding the truth.
Courtroom place for winners and losers rather than finding the truth
Exceptions to the generalisation that party autonomy is not for finding of fact
The concept of disclosure is one exception. When the prosecution are investigation, if they find something in favour of the accused, they are obliged to hand it over to the defence on the assumption that the defence may not have discovered this information. This has indications that the goal of this is, therefore, to find the truth as they are not allowed to hide information that potentially fits the narrative that the accused is not guilty – thus helping established what really happened. The reason for this concept is, perhaps, not focussed on finding the truth but instead balancing out the imbalance whereby the defence are taken to have less resources than the state, nevertheless this promotes truth finding.
Secondly, the idea of “hot tubbing” is becoming increasingly used in Scotland. This was used in the case of Hochrief, and was welcomed by judges. This is a process for expert witnesses in complex cases to come together to decide as to the expert facts of the case. This means the trier of fact is not left to distinguish between complex expert evidence and is a move away from the adversarial nature towards finding the truth of the complex facts.
Standards of proof and simple majority (Continental)
Continental approach towards fact finding where fact finders simply form a subjective view about what happened
Standard of proof, simple majority AA
Fact-finding is not an exact science and will always be danger of errors leading to incorrect verdicts. Criminal justice systems have devised safeguards and conferred rights on those accused to protect against these risks. Therefore it may be difficult for the prosecution to secure a conviction by having a presumption of innocence which places burden of proof on the prosecution. This will mandate an acquittal unless guilt is proven to a very high standard. Adjudicators must be satisfied on the balance of probabilities in civil cases and beyond reasonable doubt in criminal cases.
The standard being beyond reasonable doubt demonstrates that there is not certainty of truth. This allows the courts to avoid the philosophical problems regarding whether truth is possible and redefines truth into more manageable proportions.
In Scotland, the jury trial bar is lowered allowing verdicts based on a simple majority. This is required as 8 out of 15 votes. Thus, there is only one voter which can make the life-changing decision for the accused party.
Further, as the swing vote is only one person, this again shows that they apply to decisions being made, rather than requiring a full majority ruling.
These elements of procedure are perhaps inconsistent with the goal being truth finding. They are consistent with making a decision. It seems that is has been accepted that, if the burden and standards of proof were about certainty and the precise truth of what happened, it seems unlikely that many people would be prosecuted.
Witness testimony generally
Anglo-American trials are strictly structured around the two competing cases. Scotland – parties do not make opening statements setting out what they intend to prove. Prosecution calls their first witness, subjects them to examination in chief. However, witnesses do not testify in the familiar way of providing chronological accounts of events, largely uninterrupted and in episodes long enough to constitute independent narrative assertions. Instead of this narrative style characteristic of continental proceedings, AA testimony is fragmented. Witnesses provide short answers to very specific questions which puncture the flow of testimony to ensure control of the information elicited. Allows witnesses to give only brief narrative accounts. Carefully controlled to ensure only favourable information emerges.
Thus, the questions are directed at making the points that the advocates want to make to build up their case. Fragmented evidence from witnesses give fragmented evidence for the trier of fact. This means, therefore, that it is difficult for the trier of fact to create a coherent story of what occurred. This means they are likely to fall back on schemata and peripheral route processing whereby conclusions are not based on the logic of those particular facts, but are based on the way the facts fit within their own narrative of what happened.
Witness testimony, cross examination
Once witnesses have given their evidence, the other side has the right to cross-examine. In doing this will attempt to shake testimony by finding gaps and inconsistencies and seek to contradict evidence. They may ask leading questions, and under limited circumstances, tender witnesses’ out of court statements which contradict their testimony, notwithstanding hearsay rules.
The goal here is, perhaps, to weed out the people who are lying, pocking holes in their story. Wigmore opines cross examination is the greatest legal engine ever invented for the discovery of truth. By enabling questioners to expose lying, mistaken or otherwise unreliable witnesses through uncovering inconsistencies, illogicalities and inaccuracies in evidence. Thus this is seemingly to find the truth.
However, realistically, the process seems to be used to impugn witnesses’ credibility by, for example, suggesting they are lying, have bad memories or could not have heard or seen the events accurately.
Thus, in theory cross-examination may seek to find the truth by extrapolating the inconsistencies in a story, but it seems more likely to expose someone who is lying than crystalise someone who is telling the truth.
