Viktor Bérces: Evidence in Criminal Proceedings
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Chapter V. The Anglo-Saxon system of evidence today
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5.3. Characteristics of the US evidence system
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5.3.1. General features of procedural sections

5.3.1. General features of procedural sections

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  1. At the investigative stage, evidence from witness statements can only be obtained by the prosecutor. The summoning and examination of witnesses is the responsibility of a lay Grand Jury supervised by the prosecution. However, neither the police nor the prosecutor prepares a summary of the whole investigation to be submitted to the court, so the case file is made up directly of witness statements and other evidence.1
  2. In the preparatory procedure, the preliminary assessment of the evidence is carried out by the members of the prosecution panel, who must decide whether the offence charged is likely to have been committed by the accused; the indictment requires the affirmative vote of sixteen of the twenty-three jurors.2 The court therefore decides on the admissibility of evidence before the trial begins, to ensure that excluded evidence is not admitted to the jury.
  3. The characteristics of jury trials can be described as follows:
    • the obligation to provide the material is on the parties, and it is therefore up to the prosecution or the defence to request the examination of individual witnesses; it should be noted that the principle of immediacy requires the (re-)corroboration of all witness statements in court;
    • the method of “cross-examination” is seen as the best way to uncover the truth;3 the exclusion of the use of out-of-court testimony is therefore based on the principle that the person called to testify cannot be subjected to cross-examination, and that if that procedural step cannot be taken because of unforeseen circumstances in the witness’s person or if the witness refuses to testify in the present proceedings, direct examination is generally not considered by the court as being unsatisfactory for the (legal) purpose;4
    • the traditional understanding, still prevalent today, is that the prosecutor must act in a neutral and truthful manner in representing the prosecution, which includes the obligation to disclose to the defence evidence of exculpatory circumstances;5
    • the specialised arbitrator is an independent arbiter between the parties, whose role is limited to enforcing procedural rules, in particular those relating to the taking of evidence; prepares the jury for deliberations, but this instruction is more related to the legal context of the case; explanations and guidance by the professional judge on the weighing of evidence are less frequent, but if they do occur, the jury is not obliged to take them into account anyway; 6
    • if the accused is questioned as a “witness”, his or her statement must be preceded by an oath,7 as it is generally understood that a statement is not reliable in the absence of an oath;
    • the role of the jury is crucial in a trial, as it is the sole judge of the factual issues (since professional judges’ decisions are limited to the determination of points of law);8 the panel is always chaired by a professional judge, so unlike in many European models, there are not two professional judges; 9
    • the jury is composed of twelve persons selected at random from the potential jury list, who are required to attend the trial as citizens;
    • the composition of the jury can be influenced by the prosecution and the defence; this can take the form of a veto, which is lodged by the prosecutor or the defence if they have concerns about the jury’s composition, either for their own purposes or for the case as a whole; 10
    • a conviction requires unanimity of the jury, i.e. the affirmative vote of all 12 jurors, which precludes any possibility of apparent doubt as to the guilt of the accused;
    • because of the “split trial system”, the first part of the proceedings is limited to the question of criminal liability; the second part is limited to the determination of the circumstances of the sentence, on which the court takes separate evidence.11
 

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The trial is essentially a “prestige-based victory battle” between the prosecution and the defence.12 The question is, of course, to what extent this puts its stamp on the importance of establishing the factual truth, and to what extent can setbacks be caused by situations in which a plea that is well-constructed but unsupported by evidence is capable of triggering totally irrational jury verdicts. This struggle can be understood as a path to the establishment of the ‘truth’, in which the real events are revealed as a synthesis of the ‘duel’ between the opposing parties. However, according to Goodpaster, this contestation actually explicitly impedes the process of discovering the factual truth, since the parties only have an interest in obtaining evidence that supports their own position (for this reason, the author advocates ‘investigative’ procedures).13

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But before we think that jury trials dominate the American justice system, we must dispel this misconception. Statistics show that only 2-4% of criminal cases in the US (and Canada) are tried by this body. The remaining 96-98% of trials are tried before a single judge, as it can be said to be a regular

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  • the guilty plea of the accused;
  • charge bargaining, or
  • sentence bargaining. In the latter case, the prosecutor may reduce the charge to a lesser offence or the court may impose a significantly lighter sentence, without changing the charge, due to the lack of evidence.14
 

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This trend can be explained mainly by infrastructure: according to a Manhattan prosecutor interviewed in a US study, the court he regularly visits has only seven courtrooms, where even with hard work only 5% of cases can be heard. If that percentage were to rise to 10%, the system would collapse, he said.15 It is no coincidence, therefore, that the Federal Rules of Criminal Procedure have specifically introduced positive legal consequences for confessions.16
1 Ákos Farkas (2007) ibid. 23.
2 This rule, which is the rule in most US Member States, applies if the prosecution also decides the question of indictment in the case.
3 Attila Badó: Esküdtszéki ítéletek. [Jury verdicts. Guilty men let go?] Szeged, Studio Batiq, 2004. 183.
4 Fantoly (2012) ibid. 504–505.
5 George P. Fletcher, – Steve Sheppard: American Law in a Global Context, Oxford University Press, New York, 2005. 533.
6 Attila Badó (2004) ibid. 187. I would like to note that the regulation of the preparation of the jury verdict is not uniform in the different Member States: this is manifested, among others, in the possibility of taking notes and the regulation of the judicial instruction on the evaluation of evidence. Those Member States which “assume” the primacy of the professional judge over lay decision-making allow jurors to take the judge’s instructions with them to deliberations in written form. Fantoly (2012) ibid. 119.
7 This has only been the case since 1898, when it was considered unnecessary to swear a potential perjurer. Mihály Tóth (1995) ibid. 66.
8 According to Moór, the use of a jury is only justified if the lay judge is more competent than the specialist judge to determine the sanction. The author adds, however, that professional judges are typically aware of “the morally evaluative and individualising nature of sentencing […]”. Gyula Moór. In Mihály Tóth (2013) ibid. 343.
9 Mahler (2003) ibid. 78.
10 In US practice, the defence can remove ten jurors and the prosecutor six. Mahler (2003) ibid. 78.
11 Fantoly (2012) ibid. 34.
12 It is no accident that Frank calls these systems a model based on “struggle theory”. Jerome Frank (1949) ibid. 80–102.
13 Gary Goodpaster: On the theory of American adversary criminal trial, The Journal of Criminal Law & Criminology, 1987/1. 119.
14 Ákos Farkas (2007) ibid. 23.
15 Charles H. Whitebread – Christopher Slobodin: Criminal Procedure An Analysis and Concepts. Foundation Press Inc. 1986. 568–596. In: Farkas ibid. 25–26.
16 Cases in the latter group are considered significant. Consider the case of O.J. Simpson, in which the former athlete accused of manslaughter was found not guilty by a lay jury against hundreds of circumstantial pieces of evidence. The fact that the accused was convicted in the civil action against him is a good indication of the fallacy of the decision.
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