There is a well known and generally recognised understanding among jurists and theoreticians as well as among practitioners that evidence is the most important ingredient in criminal court proceedings as well as in all other court proceedings. At the same time, highly respected authorities may have significantly different specific understandings of what constitutes evidence. The differences of opinion as well as the growing serious interest in the problems of evidence was apparent at the first world conference on the subject of evidence and pre-trial investigation organised by the International Network for Research on (the Law of) Evidence and Procedure (INREP) in November 1995 at the Hague. 1
Today, it is completely understandable that at the centre of attention for theoreticians in the evidence field, but perhaps even more so for practitioners, is the new types of evidence and everything connected with the new ways of offering evidence. For example, the complex problems of genetic analysis, which has the ultimate practical application, are currently and unarguably topical in continental as well as in Anglo-American trial theory.
In the context of evidence, it would obviously be worthwhile even today to further develop soviet criminal procedure theory which has thoroughly examined the so-called expert approach. In this approach, the circumstances of using non-legal factors as a whole in criminal trials is of interest. The expert approach encompasses all that is connected with the expert (so-called expertology), and the use of different technological devices in criminal trials. *2
Many presentations at the world conference clearly showed that the whole subject of evidence in legal theory, as an independent and central institution of trial law, is again becoming topical as an interesting subject to research.
The urgent need for the comprehensive treatment of the subject of evidence in drafting the bill of Estonia’s new Criminal Procedure Code is also understood by Estonian criminal procedure reformers.
By way of introduction, in drafting the bill of the new Criminal Procedure Code (hereafter CrPC), it should be noted that an attempt was made to entrench to the extent possible elements of the adversarial system, taking into consideration especially the negative and positive experiences of Italian criminal procedure reform but at the same time, retaining the comparatively essential role of typical continental pre-trial procedure. In drafting the CrPC, an attempt was also made to make use of generalisations. Thus, criminal procedure which affects all institutions such as the principles of criminal procedure, subjects of criminal procedure, proceedings and the deadlines and expenses connected with proceedings have been compiled in the general part of the CrPC.
In establishing evidence as an institution, two of the main topics of debate within the working group drafting the CrPC was the kind of activities encompassed in establishing proof and whether this phenomenon uniformly “covers” all of criminal procedure (i.e. whether evidence is also an issue in pre-trial procedure) or is only an institution with respect to solving a criminal matter in court.
Out of necessity, one avenue of approach to the above discussion is through the treatment of evidence in the paradigm of soviet criminal procedure. In this paradigm, approached with a wider view, the term “evidence” in criminal procedure was applied to the epistemological activity which took place. In this approach, evidence was defined by law as the gathering, establishing, investigating and evaluating of evidence in connection with the crime in question during the pre-trial investigative proceedings, as well as the activities of the prosecutor and the court in ascertaining the truth and achieving the goals of the criminal proceeding as it made its way through the justice system. As a rule, the question of whether criminal procedure consisted of anything in addition to establishing proof was not raised. The answer to the question would obviously have been that if criminal procedure did consist of something more, then only something inconsequential.
However, not all soviet theoreticians were satisfied with the official position that intuition and evidence in criminal procedure were identical. For example, I. Luzgin considered it necessary to differentiate between direct and indirect intuition in criminal procedure, and considered only the latter as evidence. I. Luzgin noted, that when an investigator directly senses that a victim has a bodily injury, the injury must merely be established and there is nothing further to prove in the case. However, it is necessary in the given instance, to prove the cause of the bodily injury (8, p. 55).
A. Ratinov, the leading soviet court psychology specialist also tried to differentiate between intuition and evidence, claiming that if in the intuitive process the truth becomes known, then the evidence provides certain knowledge. Certain knowledge is different from truth in that it is substantiated and debated whereas knowing the truth changes into certain knowledge as the result of formalising the activities involving intuition (i.e. compiling the record and taking photographs etc.). To this somewhat unclear explanation, it can be added that in summarising Ratinov’s interpretation of a definition for evidence, Ratinov in essence states that intuition and evidence are identical (9, pp. 287-293).
The last word in the differentiation of intuition and evidence in the soviet paradigm may be said to belong to Latvian criminologist R. Dombrovski. Dombrovski first directed attention to the fact that in logic, intuition and evidence are handled as opposing phenomena in their purpose. Intuition, approached from the practical experience of the senses becomes a thought activity and its result is a new and hitherto unknown thought for the subject of intuition. With evidence, however, there occurs a movement from thoughts towards the presentation of such thoughts, towards the making of arguments, towards interaction, and to finally a practical activity. By analogy, in Dombrovski’s opinion, the relationship between intuition and evidence should be dealt with in criminal procedure. In this approach, for example, a witness to a criminal act who provides testimony to an investigator during questioning is a subject of evidence. The investigator in that situation, as well as in carrying out other investigative proceedings, is the subject of an intuitive activity. While the specifics of the intuitive sphere demand that the result of intuitive activity be established in a form strictly specified by law, it provides no basis for considering that which is established as evidence.
The investigator becomes a subject of evidence only when he or she, having selected from all of the information gathered about the crime and having for himself or herself ascertained the truth in connection with the crime, begins to assemble the summary of charges. Now, in reality, the movement from thoughts toward the direction of presenting them can be spoken of. It is just at this point that everything must be changed from “personal truth” to “truth for everyone else”.
In Dombrovski’s opinion, the court is a subject of intuition as it hears the summary of charges as well as in the court proceeding which follows and during the arguments presented before the court. But during the formulation of the court’s decision and rendering of the verdict, the court is the subject of evidence (the court must establish proof for the state!) (6, pp. 14-17).
Dombrovski’s interpretation is, at least in the framework of the soviet paradigm, a substantial step in the development of evidence theory, in the formulation of a rational structure for criminal procedure as a whole. At the same time, Dombrovski’s interpretation failed to resolve at least two questions:
1. If something is proved during the pre-trial procedure, is it possible during the criminal proceeding to also “conclusively prove” it?
The answer to this question is obviously determined first of all by understanding the goal of criminal procedure. If one takes the position that the realisation of the norms of criminal justice against an individual who has committed a crime on the one hand and the rehabilitation of an individual who has been suspected, accused or found guilty without basis on the other hand are equally weighted goals of criminal procedure, then perhaps the investigator who concluded the investigation could be called the trier of fact in so far as that conclusion is contested. However, in that case it should also be possible to initiate criminal procedure only for the purpose of rehabilitation. The usefulness of this possibility and the theoretical justification of this possibility are nevertheless rather questionable. In modern criminal procedure which is even remotely democratic in nature and based on the presumption of innocence, it is difficult to find justification for criminal procedure which is not based on the principle of accusation. It should be emphasised that in the current case, criminal procedure for the purpose of rehabilitation has been disputed from the beginning. The situation would be entirely different if the criminal procedure once begun was initiated on the principle of accusation and at some later time resumed on the basis of rehabilitation, for example in the framework of another procedure.
An investigator who arrives in court with a summary of charges in a criminal matter cannot, however, be considered the trier of fact for the reason that the court, as the only authority competent to do justice, is in the final analysis, undeniable and any consideration of the investigator’s prior establishment of proof in the matter (which is so typical of soviet criminal procedure) cannot be taken seriously. Even the most logical summary of charges cannot under any circumstances be considered as “the matter being proven”. For those who have extensive experience in soviet pre-trial investigations, it is quite difficult to accept that pre-trial procedure is not independent of criminal procedure but only a tool for court procedure, and a tool just for the purpose of gathering evidence! Note that in planning Estonian criminal procedure reform, it was proposed in law enforcement circles (police) that a separate pre-trial procedure code be drafted.
In summary, the answer to the first question may be that since in pre-trial proceedings it is not possible to “conclusively prove something”, it is not possible to consider evidence gathered at this stage as proof.
2. The next question to be presented by the CrPC working group to R. Dombrovski would have been as follows: in addition to the two sides in a court proceeding can the court (and must the court) also be a subject of evidence (subject of evidentiary activities). To that question the response would involve on the one hand a so-called inquisitional criminal proceeding and on the other hand, the competing of adversaries in a criminal proceeding which is obviously different. Since an inquisitional court is an active gatherer of evidence in a court proceeding, it would be hard for the court to become free of the role of trier of fact.
In German criminal procedure theory, the entire institution of establishing proof is linked only to court proceedings: “the right to prove is handled as the sum of legal directives in which it is established in what manner and in what amount a judge may gather the necessary factual materials in order to make his or her determination and render a decision ... Establishing proof (die Beweisaufnahme) can be handled as a part of the discussion stage of the court process, during which at either the initiative of the court or with the help of evidence required by law to be presented by the parties to the action the crime is able to be reconstructed and the factual circumstances concerning guilt as well as the legal consequences of the act can be clarified.” (3, S. 161)*3. From the foregoing, it can be seen that in the wider understanding of the German criminal procedure paradigm, establishing proof is substantively considered to involve only evidence which is gathered by the court. It is desired that the parties to the court proceeding not have even a minimally important role for the reason that in the final analysis, the court itself, without regard to the effectiveness of the activity of the parties, must reach the so-called material truth. The question of what the parties to the court proceeding are supposed to do if they lack a central role in establishing proof in the criminal proceeding is simply not raised.
In adversarial criminal procedure, the roles of the parties to the court proceeding and the court in the process of trying the facts are clearly differentiated and psychologically very understandably so. In an adversarial criminal proceeding, the court does not pretend to show that it can act in the dual role of convincing itself (without regard to other advocates) and at the same time becoming convinced as a result of its own fact finding activity. In other words, in an adversarial court proceeding trying the facts (establishing proof) is the responsibility of the parties to the court proceeding wherein the goal of establishing proof is an application to the court that it certify that which is sought to be proved has in fact been proved.
In summary, firstly it should be noted that in constructing the institution of evidence in the bill of the CrPC, as a matter of principle, the drafters tried to approach the subject from the adversarial court procedure model and with the understanding that the court is only competent to certify the facts presented in the court proceeding as having been proved and to dispense justice.
Second, in constructing the institution of evidence in the CrPC, the drafters have approached it on the one hand as an attempt to tie together interconnected basic beliefs of evidence as logically as possible and to develop a closed system for the permitted types of evidence and on the other hand as an attempt to create conditions within that closed system which allow for the free evaluation of evidence.
The CrPC is different from soviet criminal procedure in that the role of establishing proof in the pre-trial stage of a proceeding has been significantly reduced. This means that pre-trial parties such as investigators and the police are treated in the CrPC primarily as gatherers of evidence rather than as equals to the triers of fact in the court action, that is, the parties to the court action and the court. At the same time, in the final analysis, and as the result of a vote in the working group which drafted the CrPC, the understanding prevailed that the pre-trial party (investigator) must rationally approach the gathering of evidence based only on the need for evidence. Also, if the party to the court action (primarily the prosecutor) assumes the logic applied by the pre-trial party in gathering the evidence and in the summary of the pre-trial proceedings during the process of establishing proof at trial, then that part of the logic of the pre-trial party’s activities without a doubt is at least retrospectively joined to the essence of the evidence. In that respect, in accordance with the bill of the CrPC, evidence is considered to be a phenomenon which encompasses all of criminal procedure.
In the CrPC, establishing proof is treated as one category of procedural activity. It is established in § 87 of the CrPC, that the essence of criminal procedure is procedural activity and that the types of procedural activities are establishing proof, gathering evidence, adherence to criminal procedure, presentation of the criminal complaint, presentation of the criminal charges and the rendering of the verdict. Thus, in accordance with the bill of the CrPC, criminal procedure should not contain anything which is not encompassed by the above-mentioned procedural activities.
Section 88 of the CrPC defines establishing proof as gathering, controlling and evaluating evidence in pre-trial procedure but in court procedure as the activity of the parties whose goal is to persuade the court of the presence or absence of certain factual circumstances by presenting and analysing the evidence which has been gathered and, if necessary, supplemented during the court proceeding.
Section 93 of the CrPC establishes that the court in resolving a criminal matter is to rely on the circumstances which it has accepted as having been proved or taken judicial notice of and that the state of being proved depends on the court’s conviction of whether the facts concerning the elements of proof are true or not, based on the results of trying the facts. Section 93 also establishes that the court may take judicial notice of a fact which the court can confirm by receiving trustworthy information from a source not connected to the criminal proceeding. The placement of judicial notice alongside other evidence of the quality described above should in principle help make criminal procedure more effective. At the same time, it cannot be denied that the actual boundaries of what facts may be judicially noticed must be set by court practice. In principle, judicial notice should only be applied to the site and objective aspects of the crime.
For limiting the “amount” of evidence required, § 94 of the CrPC establishes that the elements of proof are the elements of a crime about which evidence must be gathered in the criminal proceeding and which must be proved in their entirety in order for the court to render a guilty verdict. The elements of proof are made up of the following elements:
a) the value which is protected by the criminal justice system, and assaulted by the criminal act;
b) how the crime is committed including the time the crime occurred, the place, how it was committed and, depending on the crime, the kind and amount of damage caused, as well as the causal relationship between the crime and result;
c) the individual who commits the crime;
d) the degree of guilt of the individual who commits the crime, its nature and degree; and
e) information concerning the character of the individual who commits the crime, as well as other compelling information concerning the individual’s degree of responsibility in the matter.
The fact that the elements of proof must be positively proved as a prerequisite to a guilty verdict by the court, also means that “inequality” in the selection of the methods of proof is inescapable by the parties to the court proceeding. Thus, different from the prosecutor, a defence counsel in addition to making use of positive evidence may use negative and nullifying evidence. For example, a defence counsel may present to the court evidence on behalf of the accused which justify the accused’s actions or mitigate the accused’s responsibility. In providing negative evidence, a defence counsel actively attempts to overturn evidence offered by the prosecution. Based directly on the presumption of innocence, by employing nullifying evidence, a defence counsel stresses the inability of the prosecution to prove the facts of certain elements of the crime.
The main method of proof is undoubtedly the introduction of a piece of physical evidence, although the ability to argue and persuade using such evidence cannot in any manner be underestimated. With respect to evidence, it was considered necessary in the bill to differentiate between the content of evidence, the form of evidence and the type of evidence (CrPC §§ 91 and 92). Taking this into consideration, evidence has been defined for the purpose of solving a criminal matter as the necessary information (the content of evidence), having a person or something else as its source and which was obtained observing the requirements established in the CrPC (form of evidence).
In accordance with the CrPC, the content of evidence may be a statement, an expert opinion or some other information.
A statement is verbally conveyed evidence about the circumstances or facts concerning an element of proof by a witness, victim, suspect, accused, or defendant which is given in an examination, questioning, presentation for identification or while tying statements to circumstances and placed in the investigation or court file and trial record. Statements also include evidentiary information preserved in audio or video recordings or handwritten records.
An expert opinion, in accordance with the CrPC, is the recorded official statement of an expert containing the expert’s categorical or probable conclusion given in the course of an assignment to determine the facts of a given circumstance. In accordance with the CrPC, evidence cannot be the verbally expressed opinion of an expert appearing during a court session and placed in the court record. This principle has been inherited from soviet criminal procedure and the justification for it is that knowledge coming from an expert may only be considered if it is in proper written form. Thus, the expert cannot influence the evidence process with the mere power of his or her authority.
A personal source of evidence, according to the CrPC, may be a witness, victim, suspect, accused, defendant or an expert who has made an analysis and evidence from another source such as a document, thing or other object.
As mentioned in the foregoing, according to the CrPC, the many sections of the requisites code establish obligatory observance of formalities in obtaining evidence (gathering). The most important formalities are established in the following sections of the CrPC: § 7 (presumption of innocence); § 21 (free evaluation of evidence); § 109 (general requirements for the gathering of evidence in a proceeding and for adherence to criminal procedure); § 63 (witness’s right to refuse to testify); § 64 (obligation of officials not to reveal confidential data); § 102 (gathering of evidence); § 112 (records of investigatory and other proceedings); and § 166 (giving of statements during examination, questioning, tying of statements to circumstances and presentation for identification).
In consideration of the unique content of evidence in a criminal proceeding, § 92 of the CrPC sets out the permissible types of evidence. These include the record of the investigative activities, the court record, appendices to the record of the investigative activities or court sessions (for example, to terminate a discussion of whether a photograph included in the record of the examination of the scene of the crime can have independent evidentiary meaning if the information contained in the record and on the photograph are contradictory), the record of an expert witness opinion, other documents, a piece of physical evidence, a photograph, film or other technically recorded information obtained by surveillance.
The last-mentioned type of evidence represents a necessary yielding of the principles of criminal procedure to the demands of the police to be able to “react adequately” to growing crime rates, especially organised crime. According to the CrPC, a photograph, film or other technically recorded information obtained by surveillance may be evidence if it was obtained in accordance with the established procedure in the law on surveillance activity and the receipt of the evidence is logged in the record compiled by the authority performing the surveillance. Thus, this means that in the given instance, the general procedure established in the CrPC for the gathering of evidence need not be followed.
The permissible methods of gathering evidence in criminal proceedings are set out in § 100 of the CrPC. These include investigative activities, expert opinion, taking inventory and audit and the demand or presentation of a document or piece of physical evidence. As mentioned, in certain instances and following procedure established by law, evidence may be gathered during surveillance activities.
In the CrPC, eight methods of gathering evidence during investigatory activities are differentiated and regulated in detail. The categories are examination, questioning, tying of statements to circumstances, presentation for identification, observation, confiscation, searching and investigative experiment.
From the foregoing, it appears that in drafting the CrPC, the approach used was based on the understanding that it is possible to positively regulate the permissible types of evidence and for that reason it is not necessary to supplementally regulate many kinds of prohibitions regarding evidence, which in German language specialised publications are described by the collective term Beweisverbote.
Presentations touching upon issues of evidence which were presented at the conference could be tentatively placed in the following categories:
1. General theories of evidence theory (culture and establishing proof; jurisprudential and historical establishment of proof; jurisprudential and scientific establishment of proof; and so-called new directions in teaching evidence).
2. Specific so-called classic current problems concerning types of evidence.
3. Plea bargaining – an alternative to evidence?
4. Evidence and human rights.
5. Environmental law and evidence.
6. Stolen goods and evidence.
7. The use of genetics as evidence and other modern methods of obtaining evidence.
8. Organised crime and evidence.
9. Criminal procedure and evidence in matters of war crimes (using former Yugoslavia as an example).
In summary, it must again be admitted that in Anglo-American criminal procedure theory, evidentiary problems are dealt with somewhat more than in continental European theory. Even more, the institution of evidence is one of the few institutions of criminal procedure in which the degree of theoretical examination in Anglo-American criminal procedure theory is higher than in continental theory (the trade-off being that it is also central!). Simply stated, in accordance with the Anglo-American understanding, establishing proof is primarily a phenomenon of court activity in which argumentation is in a central position. For that reason, in that theory studies which deal with the credibility of argument are essential.
Arguably we can speak of the beginning of a new level of Anglo-American evidence teaching in the 1970s. Namely, during those years the serious search began to find opportunities of tying evidence to probability theory, statistics and other interdisciplinary approaches. To some extent, such a “probability-theoretical” establishment of proof as the object of a scientific study is becoming more topical even in continental Europe and this is confirmed by F. Toepel’s (from Germany) presentation at the conference “Legal Proof and Scientific Explanation.” True, F. Toepel admitted to being one of the few pioneers due to the theme of the study being in the continental paradigm. It should be pointed out that Toepel’s writings touch upon an area which will obviously become very topical in the near future, namely the problems associated with product liability.
Establishing proof by probability theory means the attempt to approach to some extent quantitatively the so highly valued and at the same time so vague principle of the free evaluation of evidence.
The quantitative approach has been described understandably first in connection with the topical question of the expert as a source of evidence. Interestingly, the quantitative approach to an expert’s opinion has brought with it the need to deal with the quality of the expert’s laboratory work which W. J. J. Sprangers (“Court Experts’ Laboratories and Quality”) touched upon in a presentation. The themes of the presentations at the conference are set forth in a published collection which is referred to in the list of publications used under 1.