Evidence

Question 1

What is evidence?

Answer 1

Normative/legal scope: collected in a specific way, types of evidence, relevant to cover the definition of the offence…

Question 2

Types of evidence

Answer 2

• Tangible (reproduceable)
• Witness
• Experts (different opinions? EN: part of the contest / NL and G: only one expert)
• Accused (not forced, obligation to tell the truth in EN: perjury)
• Police reports (NL, an independent source of evidence introduced in writing / police perfrom duties under oath)

Question 3

Two approaches to what can be considered evidence

Answer 3

• Free systems: anything (wide discretion of judge)
• Numerus clausus systems (closed): closed list

Question 4

How are rules of evidence in the different systems?

Answer 4

• EN: quality and quantity of rules (detail): chain of evidence (to avoid tampering with evidence), equality of arms, no hearsay, jury directions (preserve its purity: anything not admitted by the judge as evidence will not be shown to the jury)
• NL: flexibility (open to any type of evidence, few limiting rules) - Art. 359a: for irremediable breach+ not specified in statute (para 1: either reduce sanction, exclude (causal link + serious breach), or barred prosecution in grave violation) (para 2: interests protected by breached rule, gravity of rule, caused harm to defence)
• G: same judge to assess admission and evaluation of evidence (responsible for the taking of evidence, making sure there are no violations)

Question 5

Who takes evidence and when?

Answer 5

NL: from the commission of a crime by all state authorities that have a role in investigation / adjudication

EN: parties are responsible of collecting evidence to present it and reproduce it later at trial

G: police and judge

Question 6

Do courts state reasons?

Answer 6

EN: jury does not motivate its decision

G and NL: judges are obliged to motivate how they came to a conviction

Question 7

Arguments in favor of admitting unlawfully obtained evidence

Answer 7

• Substance is the same (silly not to use it if reliable)
• Cases may fall apart for technicalities (burdensome for public interest)
• Denying justice: victim’s rights

Question 8

Arguments against admitting unlawfully obtained evidence

Answer 8

• Remedy for violation (not being able to use evidence illegally obtained)
• Deterrence for police
• Moral integrity of trial: condoning wrongdoing by state authorities