Comparative Criminal Law Lecture 4: Judicial Decisionmakers 

Utrecht University, Bachelor 3 (2016/2017)

Comparative Criminal Law

Lecture 4, 28 march 2017

Judicial decisionmakers (The Concept of Truth)

Essence of legal political culture

‘Every society must be equipped with institutions that can function in the context of its own political culture’. – Griffith 1997, p. 158.

We already crossed the investigative stage of the proceedings, we are now in the trial stage. There are also relations between those stages, because the trial stage is also about the investigation stage; everything that happens in this stage will reflect on how the trial works.

Key features of judicial decisionmaking

• Independency of the judiciary: None of us wants to be tried by a dependent judiciary.
• Impartiality of the judicial decision-makers: None of us wants to be tried by a partial judiciary. The European Court of Human Rights is both objective and subjective. The United Kingdom is objective and the United States are subjective. In terms of the case law about decision-making, the objective is most important. There are some legal safeguards which were acknowledged by the European Court. There is case law which relates to the judges.
• Legal safeguards: These safeguards are present to establish impartiality, such as:

• Prior to trial: rules of appointment, jury selections.
• During trial: Withdrawal ex officio, substitution/challenge. For example, think about the Wilders trial, he wanted the ‘impartial’ judge to be replaced. This is a possibility to challenge the impartiality of the judge.

The archetypes

The civil law has a ‘patriarch doctrine’, where the judge is the decision-maker; versus the peer review doctrine in the common law system. The ‘peer review’ is known as the jury as a decision-maker. This occurs in the United States and the United Kingdom, for example.

Patriarch doctrine

Patriarch doctrine: this doctrine is the pursuit of substantive truth, the enforcement of the law to uphold the maintenance of legal and social order. The concept of truth is different than within the peer review. The truth we find in Court cannot be any other than one we decided upon. The Patriarch concept knows a bench trial, which means that there are only professional judges and there is no jury. The judge works single or in a panel. There is also vertical distribution of authority, the judge is supervised by the Ministry of Justice. The judge is a professional and quasi-judicial prosecutors. They are the judiciary. The judge and prosecutor are neutral and objective. The Patriarch doctrine also shows a fundamental a-symmetry of the parties; the defence has a limited role in the criminal proceedings. However, within the modernisation of the Dutch Code of Criminal Procedure, this has been changing. The weight lies on the pre-investigation stage. If you want anything done, you will have to do it within the investigative stage. One cannot wait until Court to call upon witnesses, for example. The judge is the decision-maker, he decides the outcome of the case. In deciding the outcome, the judge is strictly bound by the law (Article 1 Dutch Code of Criminal Procedure).

The development has been that there is a contemporary tendency towards out of court-settlements, think about for example the plea-bargaining, or penal order (strafbeschikking). You will only come to the judge if you oppose the penal order which the Public Prosecutor offered you. You have the right to be tried by a judge. The Patriarch doctrine does not select the evidence beforehand. The judge will look at the dossier, and decide whether or not he is going to use the evidence. There is no extensive prior filtering of evidence.

According to Pakes, the ‘Dutch trial is unbearable short and very boring.’ The focus lies on the pre-trial stage and the dossier. The defendant is an object of investigation; it’s his battle against the Public Prosecutor. This falls within the scope of the inquisitorial stage of the proceedings. It is possible that we will have a non-bifurcated procedure in the future.

The decision of the Judge has to be reasoned, he has to reason his opinion. He needs to answer the question on which evidence he based his decision and why. He sums up the evidence and motivates his conviction; why is he convinced based on which evidence that the defendant is guilty of the crime? His conviction has to be built.

Finally, the Patriarch doctrine has a limited appeal. There is a possibility for both the defendant and the Public prosecutor, but it is limited to the law and the facts.

The Patriarch doctrine summarised: 

• Bench trial;
• Vertical distribution of authority;
• Professionals & quasi-judicial PPS;
• Fundamental a-symmetry of the parties;
• Elaborated body of statutory procedural law;
• Judge decides;
• Tendency to out of Court settlements;
• No extensive prior filtering of evidence;
• Focus on pre-trial and dossier;
• Defendant is object of investigation;
• Reasoned opinion;
• Limited appeal.

Rules on appointment judiciary

The judiciary is not elected by Parliament, but by co-option by the judiciary. You will have to apply by the judiciary, and they are going to examine whether you’re fit to become a judge. When this is the case, you will be appointed with confirmation by the King’s consent. There is also a limited competence to dismiss judges. You’re an autonomous judge, but are Guided per the Council for the Judiciary & internal instructions (LOVS). This is a national section of the chairs of the criminal department. It sets instructions on a national basis for judges. This is because judges are professional, but they are also persons.

Peer review doctrine

The peer review doctrine is in pursuit of procedural truth and a dispute resolution. It is known as a jury trial, but sometimes also the bench trial, because it is very expensive and costs much time to form a jury. The trial is mostly unpredictable in the outcome. There is a horizontal distribution of authority; there is no supervision over the police of the prosecution. The parties are autonomous, there is equality of arms. The case law is very important in the peer review doctrine, however, there is a tendency towards statutory law. In the peer review system, the judge is the supervisor, not the decision-maker. This is the task of the jury. The defendant is not obliged to take the stand. He does not have to witness against himself, according to the privilege of self-incrimination. There are systems in which the judge and the jury assess the facts as well as the sentence.

Most of the cases in the peer review doctrine end with trial-avoidance by application of plea-bargaining. The plea-bargaining may be difficult; innocent people do this mostly because the sentence may be much lower than when they go to trial. Even if they are innocent, the risk of going to trial and getting a higher sentence is too big. So, they make pre-trial arrangements. You have to take a plea, open up your strategy forward (guilty or not guilty). The CPS has to provide you with facts for which you will be prosecuted, so that you can form a strategy. The CPS represents you by giving you the outline, facts and assumed correct.

Evidence is disclosed to both parties, because it needs to be admitted to the jury trial by the judge. You cannot keep your strongest argument silent, and then in Court: ‘I have something to say…’

The judge may request additional information in preparing the case. He is also permitted to exclude evidence. Bifurcated procedure: Guilty + Sentencing guidelines = Sentence.

The Peer review doctrine summarised:

• Jury trial & bench trial;
• Horizontal distribution of authority;
• Party autonomy;
• Case law, yet tendency towards statutory law;
• Judge is supervisor/arbitrator;
• Defendant not obliged to take the stand;
• Bifurcated procedure;
• Trial avoidance;
• Pre-trial arrangements, CPS;
• Evidence needs to be admitted;
• No full appeal against legal errors;

Rules on Jury arrangements

The jury trial is regulated as a constitutional right in serious cases. Jury arrangements occur in only 5 to 10% of the criminal cases, and it’s about oral debate. The Jury has to see and examine if the justice is done, they do not have to reason their decision. The Jury can be arranged in mixed tribunals, jurors and presiding judges. The jury has several competences, they can decide about guilt and sometimes the sentence. There’s a jury’s composition (voir dire). In the United States this is really popular, in the UK it’s not. The potential Jury members will have to fill in a questionnaire. It can be examined whether there is a certain bias, for example against black people. Based on this assessment, someone can be expelled of the jury: ‘You’re a sexist? I don’t want you in my jury.’ If the defendant finds more than 5 jurors unsuitable, he has to reason why he thinks so. If there is any cause for concern, then you can go to the court to ask for excluding the jury member.

It is therefore a costly and time consuming procedure to form a jury.

Judge’s position + jury elaborations

The judge will prevent the jury form misinterpreting the law; he will give them instructions in examining the value of the evidence, the chain of reasoning and constituent elements with regard to the procedure. The Judge is summoning the facts and interpreter of the law.

The Jury does not provide a reasoned opinion, this is not put on paper after the outcome of the trial. Therefore, the instructions are presented before the jury goes to the elaboration room. This is the moment to give the instructions. There are curtains by the jury elaborations. The unreasoned verdict may be a violation of article 6 of the ECHR. All the systems, civil and common law in Europe, need to be compatible to Article 6 ECHR. However, in the article you won’t find anything about jury trials.

The jury does not have to reason their decision, because it is not dictated by legal rules and standards, but led by conscience and ratio. We must have these bunch of people providing us a decision based on conscience. The confidentially of the jury deliberations requires absence of reasons. This is the rule of personal conviction. The majority of the jury rules, the minority has to adapt to the decision of the majority.

Llhermitte against Belgium

This was a case before the European Court of Human Rights. In this case, it was established that the jury trial is, even with unreasoned verdict, is compatible with Article 6 ECHR. This was decided with the aim of transparency.

However, safeguards are needed to prevent arbitrariness. The European Court looks upon the case as a proceedings as a whole. It evaluates the public and defendant, the jury etc.

Safeguards provided for by the European Court:

• There must be a clear indictment;
• The judge must ask clear questions to the jury;
• The questions must be considered in presence of the defence (‘s lawyer);
• Jury has to obtain clear instructions;
• There has to be a professional judge involved to supervise the trial.

What about the truth?

In the adversarial system, we know the procedural truth. There’s equality of arms, two halves make a whole. In the inquisitorial system, there is a substantive truth with limited reasoning, there are no strict rules on evidence and unequal positions.

Both systems have to deal now with the victim, there’s a tendency towards the role of the victims. They are not soon satisfied anymore, so they response more often. The average public thinks that judges do provide too lenient sanctions. There are more victim’s right, not being a party but a participant. It's spreading all over, more in the pre-trial stage, in the trial stage. It’s a third player within the proceedings, in assessing the truth.

• The right to be heard:
  
  • In the Netherlands written & oral, no limitations.
  • In Europe: Directive EU 2012/29, art. 10/preamble 41
  • In the UK: VPS
  • In the USA: VSoO (death penalty)
  • Questioning and cross-examination.

This happens before the guilt of the defendant is assessed. The risk of having victims to be heard in trial and having them speak unlimited, is that they may be cross-examined and secondary victimised.