Theory Flashcards
What are the two types of criminal proceedings?
- Inquisitorial
- Accusatorial/ adversarial
Describe the inquisitorial system
-used in civil law
-judge
-substantive truth finding but he state
-vertical relationship between the state and the defendant
-active and intervening judge
-written case file
-prosecutor sitting almost next to the judge
-started in France
Describe the accusatorial/adversarial system
-used in common law
-uses a Jury instead of a judge ( inquisitorial)
-horizontal relationship between parties
-passive judge -> it is in hand of the parteis
-oral presentation of eveidence and written submittions
-defence and prosecutor are in the same level in front of the police
-started in England
What does the initial inquiry by the government in a criminal investigation establish?
- The facts and the circumstances of the suspected crime
- Identify those involved
- Preserve any evidence related to the crime
What is the objective of a criminal investigation by the government
Finding the truth-> not the absolute goal ( not always possible to achieve absolute certainty when investigating a crime e.g there can be incomplete evidence)
What are the investigative measures used in a criminal investigation
-interrogation
-DNA testing
-fingerprints
-physical evidence from the crime scene
What is the American approach with regards to police interrogations
-bill of rights: 10 amendments of the US constitution
- amendment v: nor shall be compelled in any criminal case to be a witness against himself
- not give evidence against oneself, as the government has many resources to figure out what happened
-accusatorial/ adversarial system
What is the french (continental) approach with regards to police interrogations
-right to not incriminate oneself
-a person taken into police custody may be interrogated, he must be appraised of his rights to remain silent and not legal counsel
-in a case of flagrant offence:the police have wide ranging powers to act on their own initiative
-in case of a non-flagrant offence / serious crimes: a judicial investigation can be opened at the request of the public prosecutor. The investigating judge has wide-ranging powers and has the duty to seek inculpatory and exculpatory evidence. All defence rights must be fully respected
What is exculpatory evidence
Definition: Exculpatory evidence is evidence that tends to show or prove the innocence or non-culpability of the accused or the party in question.
Purpose: Exculpatory evidence is favorable to the defendant and may undermine or contradict the case presented by the prosecution. It is evidence that supports the idea that the accused did not commit the alleged offense.
What is inculpatory evidence
Definition: Inculpatory evidence is evidence that tends to show or prove the guilt or culpability of the accused or the party in question.
Purpose: Inculpatory evidence supports the case presented by the prosecution and is typically used to establish the defendant’s involvement in the alleged offense. It points toward the person’s culpability.
What is a non-flagrant offnce
Refers to a crime that is not committed openly, or is not immediately discovered
What is a flagrant offnce
A crime that is commited openly or is discovered immediately after its commission
Article 6(2) - PRESUMPTION OF INNOCENCE - ‘everyone charged with a criminal offnce shall be presumed innocent until proven guilty. ‘
What does this entail?
- Burden of proof = always on the prosecution, if it shifts, there is a violation of art. 6(2). And any doubt should benefit the accused
- The scope of article 6(2) in criminal proceedings= applies through the duration of the criminal proceedings including the appeals stages ( except sentencing)
Art 6(1) (right to a fair trial) RIGHT TO REMAIN SILENT. What does this entail in the real world
-the right to remain silent is implicit
-right to remain silent= only applied to oral communication
-privilege against self-incrimination= applies to oral and written information
