The European Right to Confrontation in Criminal Proceedings: Absent, Anonymous and Vulnerable Witnesses (Second Edition)

The European Right to Confrontation in Criminal Proceedings: Absent, Anonymous and Vulnerable Witnesses (Second Edition)

by Stefano Maffei

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Product Details

ISBN-13: 9789089520708
Publisher: Europa Law Publishing
Publication date: 11/16/2012
Pages: 280
Product dimensions: 6.20(w) x 9.40(h) x 0.80(d)

About the Author

Dr. Stefano Maffei is Professor of Criminal Procedure at the University of Parma (Italy). A registered attorney since 2003, he completed a doctorate in Law at the University of Oxford in 2005 and was a Junior Research Fellow at Linacre College. Dr. Maffei joined the Harvard Law School as a Visiting Researcher in 2002 and was a Fulbright Scholar at Temple Law School in 2011. His publications, research and teachings interests are in the area of Human Rights, criminal evidence and procedure.

Table of Contents

Contents v

Abbreviations xii

Introduction 3

Chapter 1 Confrontation of Adverse Witnesses as a Fundamental Right

1 Preliminaries 9

1.1 Outline 9

1.2 Foundations and Terminology 10

1.3 Fundamental Rights, Public Interest and Departures from Confrontation 11

2 The Origins and Development of the Right to Confrontation 13

2.1 Ancient Laws 13

2.2 Adversarial Origins (England, United States of America) 13

2.3 Transplant in the Continent of Europe 16

3 The Right to Confrontation in Contemporary U.S. Law 18

3.1 Confrontation and Manner of Testimony 18

3.2 Out-of-Court Statements: Confrontation before Crawford v. Washington 20

3.3 Out-of-Court Statements: Confrontation after Crawford v. Washington 22

Chapter 2 Testimonial Evidence and the "Confrontational Paradigm"

1 Outline 29

2 Testimonial Evidence 29

2.1 From 'Witness' to 'Testimonial Evidence' 29

2.2 Court Testimony and Functional Equivalents: 'Assertions Made in Contemplation of Litigation' 30

2.3 'Grey Areas' in the Determination of Testimonial Evidence 33

3 The Confrontational Paradigm 35

3.1 Publicity 36

3.2 Live Presence of the Accused 37

3.3 Live Presence of the Fact-finder 37

3.4 Legal Commitment to Sincerity 39

3.5 Disclosure of Personal Identity 40

3.6 Adverse-questioning 41

4 Some Theoretical Assumptions for a Universal Theory of Confrontation 43

5 Departures and Counterbalances 44

Chapter 3 Absent, Anonymous and Vulnerable Witnesses

1 Absent Witnesses 49

1.1 Definition 49

1.2 Death and Poor Health 49

1.3 Non-compellable Witnesses 50

1.4 Co-defendants 51

1.5 The Absconding or 'Unavailable' Witness 53

1.6 Counterbalances in Case of Absent Witnesses 54

2 Anonymous Witnesses 55

2.1 Definition 55

2.2 Witness Intimidation 55

2.3 Victims 58

2.4 Undercover Agents 58

2.5 Counterbalances 59

3 Vulnerable Witnesses 60

3.1 Definition 60

3.2 Children 62

3.3 Victims of Sexual Offences 63

3.4 Adults with Learning Disabilities 65

3.5 Counterbalances 65

4 Moving Forward: From Theory to Practice 66

Chapter 4 The Right to Confrontation in European Human Rights Law

1 Preliminaries 71

2 The Interpretation of the ECHR 73

2.1 Evolutive Interpretation 73

2.2 Autonomous Meaning 74

2.3 Principle of Proportionality 74

2.4 Margin of Appreciation 76

3 The Fairness of Criminal Trials 78

3.1 The Standard of Fairness 78

3.2 Equality of Arms 79

4 Principles of Criminal Evidence in ECHR Law 80

5 Testimonial Evidence in ECHR Law 83

5.1 Who Is a 'Witness'? 83

5.2 Witnesses Favourable to the Accused 86

5.3 Prosecution Witnesses 87

5.4 The Manner of Testimony and Prior Inconsistent Statements 88

6 The Evidence of Absent Witnesses 90

6.1 Admissibility: The 'Good Reason' for Absence 91

6.2 Evaluation: The 'Sole and Decisive Evidence' Rule 95

7 The Evidence of Anonymous Witnesses 96

7.1 Admissibility 98

7.2 Anonymous Absent Witnesses 100

7.3 Manner of Testimony 101

7.4 Evaluation: The 'Extreme Care' Rule 102

8 The Evidence of Vulnerable Witnesses 103

8.1 Admissibility 104

8.2 Manner of Testimony: the Setting up of 'Protected Examination' 105

8.3 Evaluation 106

9 Conclusion: Contribution of ECHR Law to a General Theory of Confrontation 108

Chapter 5 The Foundations of Criminal Evidence in English, Italian and French Law

1 Outline 113

2 The Macro Comparative Framework 113

2.1 Preliminaries 113

2.2 Macro and Micro Comparisons 114

2.2.1 Adversarial and Inquisitorial Styles 116

2.2.2 Multi-directional Changes in Contemporary Criminal Procedure 118

2.2.3 'Substantive' v. 'Procedural' Exclusionary Rules of Evidence 120

3 Model Countries and Terms of Comparison 123

3.1 Italy, France, United Kingdom 123

3.2 Sources of Law: Definition and Typology 124

3.2.1 Constitutional Law 125

3.2.2 ECHR Law 127

3.2.3 Statutory Law 128

3.2.4 Case Law 131

3.2.5 Jurisprudence 131

3.3 Temporal Boundaries 132

3.4 Structural Boundaries 134

3.4.1 Serious Offences 134

3.4.2 The Course of Litigation 134

4 English, French and Italian Criminal Evidence Law 139

4.1 What 'Evidence' Means 140

4.2 Judicial Fairness 141

4.3 Orality 143

4.3.1 The Finding of the Investigation Before the Court 145

4.3.2 The National Variants of Adversarial Adjudication 146

4.4 Exclusionary Rules of Evidence 147

4.5 Principles of Evidence Evaluation 149

5 Conclusion 152

Chapter 6 The Confrontational Paradigm in Action before English, Italian and French Criminal Courts

1 Preliminaries 157

2 The Confrontational Paradigm in Action 157

3 Variants of Confrontation: The Beauty of Diversity 160

3.1 Investigation Stage 160

3.1.1 Status of Witnesses and Pre-Trial Statements 160

3.1.2 Pre-Trial Contacts between Witnesses and Counsel 163

3.2 The Trial Stage 166

3.2.1 Status of Witnesses 166

3.2.2 Summoning of Witnesses by Parties and Ex Officio 166

3.2.3 The Accused as a Witness for the Prosecution 169

3.2.4 Obligations and Privileges 172

3.3 Witnesses on the Stand 174

3.3.1 The Interviewer 175

3.3.2 The Questions 178

3.3.3 The Answers 183

3.3.4 Prior Inconsistent Statements 184

3.4 The Evaluation of Testimony 187

4 Conclusion 189

Chapter 7 Absent, Anonymous and Vulnerable Witnesses in English, French and Italian Criminal Procedure

1 Preliminaries 193

2 The Evidence of the Absent Witness 193

2.1 Pre-Trial Statements of Witnesses 194

2.1.1 In France 194

2.1.2 In England and Wales 196

2.1.3 In Italy 201

2.2 Pre-Trial statements of a Co-defendant 203

2.3 Oral Hearsay and 'Testimonial' Statements in Documents 206

3 The Evidence of the Anonymous Witness 208

3.1 Statutory Developments in England: the Coroners and Justice Act 2009 208

3.2 The Absolute Statutory Ban in Italian Law 213

3.3 Multiple Anonymity Tools in French Criminal Procedure 214

3.4 Critical Assessments of National Laws 218

4 The Evidence of the Vulnerable Witness 220

4.1 Eligibility: The National Definitions of the Vulnerable Witness 221

4.2 The Collection of the Evidence of the Vulnerable 222

4.2.1 Unsworn Courtroom Evidence 223

4.2.2 Interviewer and Mode of Examination 225

4.2.3 Early Interviews 228

4.2.4 Audio-visual Technology 231

4.3 A Common Strategy: Hearsay as an Alternative to the Oral Evidence of the Vulnerable Witness 233

5 Conclusion 236

Conclusion 239

Literature 244

Cases 258

Legislation 270

Index 278

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