Disclosure of Evidence in Criminal Proceedings: Common Law vs. Civil Law Systems | Lecture notes Law

Chapter five

DisClosure of eviDenCe

5.1 introduction

in a broad sense disclosure means the act or process of finding or learning

something that was previously unknown.1 in the context of criminal pro-

ceedings where the parties conduct their own investigations, disclosure

obligations, in particular on the prosecution, serve the purpose of pre-

venting trials by ambush and go to the heart of an accused’s right to a fair

trial.2 the legal regime concerning disclosure is intimately connected to

the nature of the proceedings. With a timely and extensive disclosure, the

accused will be better equipped to prepare his or her defence. the accused

needs to know the identity of a prosecution witness before the trial;

otherwise it will be difficult to introduce evidence that may challenge the

credibility and/or reliability of the witness. other participants may also

have disclosure obligations. if the prosecutor understands the defence

case before the trial commences he or she may prepare adequately and

respond, which may expedite trials and improve the efficiency of the pro-

ceedings. proper disclosure may contribute to expeditious proceedings.3

if the victim is to participate in the proceedings, he or she will need access

to information prior to trial. Communication of the disclosed material to

the bench may facilitate a proactive approach from the judges in tailoring

the proceedings and seeking the “truth”.

however, opposing interests may favour limited or delayed disclosure.

the disclosure of witnesses’ identity may create a risk that the witnesses

will be intimidated. the prosecutor may for reasons of ongoing or future

investigations wish to delay disclosure. Disclosure of information may

1 Black’s law Dictionary, 2004. in u.s. law the similar notion discovery is used.

2 Brady, 2001 (i), 403; Kate Gibson & Cainnech lussiaà-Berdou, “Disclosure of evidence”,

Karim a.a. Khan, Caroline Buisman & Christopher Gosnell (eds.), Principles of Evidence in

International Criminal Justice, 306–372, (oxford university press, oxford, 2010), 306.

3 Mark B. harmon & Magdalini Karagiannakis, “the Disclosure of exculpatory Mate-

rial by the prosecution to the Defence under rule 68 of the iCtY rules”, richard May,

et al. (eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald,

315–328, (Kluwer law international, the hague, 2001), 326–327.

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Chapter five

DisClosure of eviDenCe

5.1 introduction

in a broad sense disclosure means the act or process of finding or learning

something that was previously unknown.1 in the context of criminal pro-

ceedings where the parties conduct their own investigations, disclosure

obligations, in particular on the prosecution, serve the purpose of pre-

venting trials by ambush and go to the heart of an accused’s right to a fair

trial.2 the legal regime concerning disclosure is intimately connected to

the nature of the proceedings. With a timely and extensive disclosure, the

accused will be better equipped to prepare his or her defence. the accused

needs to know the identity of a prosecution witness before the trial;

otherwise it will be difficult to introduce evidence that may challenge the

credibility and/or reliability of the witness. other participants may also

have disclosure obligations. if the prosecutor understands the defence

case before the trial commences he or she may prepare adequately and

respond, which may expedite trials and improve the efficiency of the pro-

ceedings. proper disclosure may contribute to expeditious proceedings.

if the victim is to participate in the proceedings, he or she will need access

to information prior to trial. Communication of the disclosed material to

the bench may facilitate a proactive approach from the judges in tailoring

the proceedings and seeking the “truth”.

however, opposing interests may favour limited or delayed disclosure.

the disclosure of witnesses’ identity may create a risk that the witnesses

will be intimidated. the prosecutor may for reasons of ongoing or future

investigations wish to delay disclosure. Disclosure of information may

1 Black’s law Dictionary, 2004. in u.s. law the similar notion discovery is used. 2 Brady, 2001 (i), 403; Kate Gibson & Cainnech lussiaà-Berdou, “Disclosure of evidence”, Karim a.a. Khan, Caroline Buisman & Christopher Gosnell (eds.), Principles of Evidence in International Criminal Justice, 306–372 , (oxford university press, oxford, 2010), 306. 3 Mark B. harmon & Magdalini Karagiannakis, “the Disclosure of exculpatory Mate- rial by the prosecution to the Defence under rule 68 of the iCtY rules”, richard May, et al. (eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald, 315–328 , (Kluwer law international, the hague, 2001), 326–327.

270 chapter five

affect a state’s national security interests. the accused’s right to remain

silent and not to incriminate himself or herself justifies less strict disclo-

sure obligations on the defence.

Disclosure is a notion primarily used in common law jurisdictions. it is

also an expression of the adversarial model with its “two-case” approach

and emphasis on the principle of equality of arms. Disclosure entails vari-

ous legal requirements, for example the prosecutor must hand over to the

defence all the documents and other material that will be introduced as

evidence to prove the guilt of the accused.

in contrast, such rules are superfluous in a civil law system, according

to the “one-case approach”. Both incriminating and exonerating evidence

are investigated under the control of a judicial or prosecutorial author-

ity and the results of the investigations are disclosed to the parties by

inserting them in the dossier accessible to both parties. the existence of

a dossier has a function in inquisitorial systems similar to disclosure in

an adversarial system, but with one important difference: the dossier is

available to the Judge.6 Gibson and lussiaà-Berdou hold that inquisito-

rial systems are successful in achieving full and prompt disclosure of all

material, including inculpatory evidence, to which common law systems

are gradually aspiring.

at this stage one may distinguish between disclosure inter partes or via

the registry of a Court.8 an additional question is to what extent evidence

disclosed between the parties prior to trial should also be communicated

to the Chamber.

Disclosure inter partes may be conducted through two distinct modali-

ties: disclosure stricto sensu and inspection.10 Whereas disclosure stricto

4 May and Wierda, 2002, 73; vladimir tochilovsky, Jurisprudence of the International Criminal Courts and the European Court of Human Rights: Procedure and Evidence , (Marti- nus nijhoff publishers, leiden, 2008), 107. 5 safferling, 2001, 196f; orie, 2002, 1469 noting the resemblance to the us federal rules of Criminal procedure; Zappalà, 2003, 143; friman, 2004 (i), 213. 6 orie, 2002, 1443, 1449–1451, 1484; friman, 2004 (i), 213; vladimir tochilovsky, “legal systems and cultures in the iCC: the experience from the international Criminal tribunal for the former Yugoslavia”, horst fischer, Claus Kreß & sascha rolf lüder (eds.), Interna- tional and national prosecution of crimes under International Law, 627–644 , second edition, (Berliner Wissenschafts-verlag, Berlin, 2004), 640–641; ambos, 2007, 472–473; Buisman et al., 2010, 23. 7 Gibson & lussiaà-Berdou, 2010, 311. 8 Lubanga , iCC pt. Ch. i, 15 May 2006, para. 61. 9 see section 5.5 on Disclosure inter partes and Communication of evidence to the Chamber. 10 Lubanga , iCC pt. Ch. i, 15 May 2006, 4.

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Download Disclosure of Evidence in Criminal Proceedings: Common Law vs. Civil Law Systems and more Lecture notes Law in PDF only on Docsity!

DisClosure of eviDenCe

5.1 introduction

in a broad sense disclosure means the act or process of finding or learning

something that was previously unknown.1 in the context of criminal pro-

ceedings where the parties conduct their own investigations, disclosure

obligations, in particular on the prosecution, serve the purpose of pre-

venting trials by ambush and go to the heart of an accused’s right to a fair

trial.2 the legal regime concerning disclosure is intimately connected to

the nature of the proceedings. With a timely and extensive disclosure, the

accused will be better equipped to prepare his or her defence. the accused

needs to know the identity of a prosecution witness before the trial;

otherwise it will be difficult to introduce evidence that may challenge the

credibility and/or reliability of the witness. other participants may also

have disclosure obligations. if the prosecutor understands the defence

case before the trial commences he or she may prepare adequately and

respond, which may expedite trials and improve the efficiency of the pro-

ceedings. proper disclosure may contribute to expeditious proceedings.

if the victim is to participate in the proceedings, he or she will need access

to information prior to trial. Communication of the disclosed material to

the bench may facilitate a proactive approach from the judges in tailoring

the proceedings and seeking the “truth”.

however, opposing interests may favour limited or delayed disclosure.

the disclosure of witnesses’ identity may create a risk that the witnesses

will be intimidated. the prosecutor may for reasons of ongoing or future

investigations wish to delay disclosure. Disclosure of information may

270 chapter five

affect a state’s national security interests. the accused’s right to remain

silent and not to incriminate himself or herself justifies less strict disclo-

sure obligations on the defence.

Disclosure is a notion primarily used in common law jurisdictions. it is

also an expression of the adversarial model with its “two-case” approach

and emphasis on the principle of equality of arms. Disclosure entails vari-

ous legal requirements, for example the prosecutor must hand over to the

defence all the documents and other material that will be introduced as

evidence to prove the guilt of the accused.

in contrast, such rules are superfluous in a civil law system, according

to the “one-case approach”. Both incriminating and exonerating evidence

are investigated under the control of a judicial or prosecutorial author-

ity and the results of the investigations are disclosed to the parties by

inserting them in the dossier accessible to both parties. the existence of

a dossier has a function in inquisitorial systems similar to disclosure in

an adversarial system, but with one important difference: the dossier is

available to the Judge.6 Gibson and lussiaà-Berdou hold that inquisito-

rial systems are successful in achieving full and prompt disclosure of all

material, including inculpatory evidence, to which common law systems

are gradually aspiring.

at this stage one may distinguish between disclosure inter partes or via

the registry of a Court.8 an additional question is to what extent evidence

disclosed between the parties prior to trial should also be communicated

to the Chamber.

Disclosure inter partes may be conducted through two distinct modali-

ties: disclosure stricto sensu and inspection.10 Whereas disclosure stricto