Right to confrontation

Question 1

What does the principle of immediacy entail?

Answer 1

The primary sources of evidence be produced in court, so that the judge will base his decisions solely on evidence he was able to examine independently as to its quality and reliability through his own observation, examination, and confrontation with other evidence and or the defence

Question 2

Truth in NL

Answer 2

Regulative idea: truth is an ideal to aspire, but we can never know for sure whether or not we have achieved it

• Criterion of truth for conviction: court is convinced, based on the legal evidence, that the accused committed the alleged offence beyond reasonable doubt

Question 3

What is the general rule regarding hearsay according to the principle of immediacy?

Answer 3

Not accepted, since the judge can only be directly confornted with the original source of evidence

Question 4

‘De auditu’ judgement

Answer 4

Dutch Supreme Court held that a witness who informs the court of what someone else told him can be qualified as a witness who personally made sensory observations of certain facts

• Hearsay admitted
• Principle of immediacy weakened
• In practice now, witness are rarely heard during trial (police reports instead)

Question 5

Which safeguards exist in the NL to protect the integrity of the preliminary investigation?

Answer 5

• PP must be impartial and objective
• PP and defence lawyer have ther ight to be present when the examining judge questions witness (invided obligatorily if the witness is expected not to be able to appear at trial)

Question 6

Opportunities of the accused to request witness in NL

Answer 6

• Request the PP to call experts or witnesses on behalf of the defence(PP has limited number of reasons to refuse to summon a witness)
• Request the judge to authorise calling witnesses (may refuse on similar grounds as PP but substantial efforts to summon must be made)

Question 7

Which are the deviations from the right to confrontation ECHR?

Answer 7

• Waiver: CARDUT: a failure of the accused to request from the national court the examination of prosecution witnesses could amount to a waiver of his Art. 6 rights
• Exceptions and test

Question 8

National choices regarding jury, laymen, or professional judges

Answer 8

• NL: only professional judges (academics part of the panel in some circumstances)
• EN: right to be ‘tried by your peers’ (MC: 3 lay judges or 1 professional judge for first appearance and less serious offences / Crown Court: professional judge as a referee and jury)
• G: lay and professional judges in combination

Question 9

Arguments in favor of jury

Answer 9

• Safeguard against the system (no arbitrariness, independent from the authorities)
• Democratic aspect
• Numerical superiority
• Laymen community standards of life
• Against legalistic complexity
• Own valuable experience (social class)
• Individual participation to governance (civil duty, educative role)

Question 10

Arguments against jury

Answer 10

• No training in decision making (influenced by moral views)
• Law has become complicated (e.g., serious financial offences)
• Prone to emotionalism and manipulation
• Procedural consequences (evidence heard at trial, duration…)
• Practical consequences (money, time, personal)
• Jury nullification: jury goes against the law)

Question 11

How is the right to confrontation essential for the adversarial tradition?

Answer 11

• No dossier
• Trial is focus
• Adversarial element: parties show off their cases for the first time
• Jury decision-making ability of truth in adversarial trial
• Condition for discovery of truth in adversarial trial