Trial

Question 1

Independent and impartial tribunal

Answer 1

1. Professional judges (NL)
2. Jury – Collectivity (EN):
   - Lay participation
   - Right to trial by jury not guaranteed by ECHR but if limited, the other defence rights must be respected
   - Magistrates Court  3 lay judges or 1 professional judge, for not very serious offences
   - Crown Court  Judge and jury
3. Lay men  Judges with no legal education

Question 2

Jury - Pro

Answer 2

• No arbitrary conviction
• Democracy
• Numerical superiority
• Laymen standards of life and justice
• Prevent legalistic complexity
• Civil duty
• Personal experience
• Educative

Question 3

Jury - Cons

Answer 3

• No training
• Law is complicated
• Prone to emotionalism and manipulation
• Procedural consequences (duration, advisers…)
• Practical consequences (money, time…)

Question 4

Jury nullification

Answer 4

The jury thinks the defendant is guilty but nevertheless decides not to punish him:

• Cannot be tried again for the same charges
• Jury cannot be held accountable for its decision

Question 5

Right to confrontation - ECHR

Answer 5

0. Defence must request cross-examination
1. Good reason - If failed, higher standard for following steps
2. Sole or decisive? - If failed, higher standard for following step
3. Counterbalancing factors

Question 6

Right to confrontation - ECHR - Good reason

Answer 6

• Death
• Fear  Based on objective proven grounds
• Health
• Unreachability  Must show diligent efforts
• Legal reason  For co-perpetrators because of privilege against self-incrimination
• Anonymous witnesses  Same requirements

Question 7

Right to confrontation - ECHR - Sole or decisive?

Answer 7

• Sole means the only evidence

- Decisive means evidence of such significance as it is likely to be determinative of the outcome of the case

Question 8

Right to confrontation - ECHR - Counterbalancing factors

Answer 8

• Attach less value to the statements (or proceed with caution)
• Videotape statement
• Is there corroborative evidence?
• Indirect questioning (written questions…)
• Cross-examine in pre-trial proceedings
• Allow the defence to bring more evidence against witness statements

Question 9

Right to confrontation in EN

Answer 9

1. No hearsay
2. But admissible if:
   - Allowed by law
   - Agreed by both parties or
   - In the interest of justice

Question 10

Right to confrontation in NL

Answer 10

1. Officially no hearsay
2. But most statements are written, not oral
3. Unless special circumstances in which witness presence is necessary

Question 11

Principle of immediacy

Answer 11

1. Evidence must be fresh and presented in its original form

2. There must be a link between the evidence and the judge so as to enhance the possibility of verifying the evidence