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di. 31 On the whole, it is fair to say that a prosecutor in a civil law criminal proceeding is also a source of evidence,
civil law system has less diff~culty than his counterpart in but it is incorrect to say that no privilege against self-in-
common law countries in getting evidence before a court. crimination exists. 37 Although in theory a defendant may
One of the most important differences in this area is the not decline to be interrogated, he may refuse to answer all
ability of civil law prosecutors to get into evidence state- or some of the questions posed by the judge. 38 Even
ments of witnesses made before trial, that is, declarations though an adverse inference is not to be drawn from the
of witnesses made during the investigation, either to defendant's silence, most civil law defendants choose to
police or to the investigating judge. Such evidence may be answer the questions rather than ~isk an unfavorable h-
used in practically all civil law jurisdictions for substantive pression, especially in situations where a refusal to answkr
purposes. This procedure allows a great deal of admissible a particular question might raise an immediate adverse in-
evidence to be determined or "frozen" prior to trial. 32 ference. Although the defendant is not sworn and no
e. Confessions.In addition to exclusion of evidence on sanction is taken if the defendant is caught in a "con-
the basis that it may interfere with determining the truth, tradiction," civil law systems believe that important infor-
relevant material is often excluded for other reasons. 33 mation, such as demeanor and inconsistencies, can
Although provisions exist in continental systems for the nevertheless be obtained from a defendant who testifies.
interrogation of the defendant, such provisions generally In continental syterns, it is common for the defendant to
do not address the question of what occurs if the be the first person interrogated. This is possible because
authorized procedures are not followed. 34 The doctrine of there is no requirement that the prosecutor establish a
the "fi-uit of the poisonous tree" does not generally exist in prima facie case before the defense is called upon. There is
civil law countries. Therefore, as one might expect, fewer little doubt that having the defendant appear before he has
motions are made in civil law proceedings to exclude "il- heard the other evidence is advantageous to the prosecu-
legally" obtained evidence and acquittals based on exclu- tor. The defendant's story is thus placed on stage to be
sion of evidence are comparatively rare. 35 tested against the remainder of the evidence.
$ Witnesses. The theory behind the evidence pre- h. Corroboration.No rules exist in most civil law coun-
sented at a criminal proceeding differs greatly in the com- tries requiring facts to be proved by more than one piece
mon law and the civil law. While each side in a common of evidence; corroboration is not so crucial as in common
law trial presents its evidence, in the civil law the evidence law jurisdictions. Such a requirement would be thought of
belongs to the court. Thus, in theory at least, the case does as negative in nature, and has been avoided in varying
not "belong" to the prosecutor or to the defendant. The degrees for several hundred years. 39
bulk of the questioning of witnesses is done by the presid- 11-6.Pre-Trial Procedures: TheDossier.Probably one
ing judge. of the greatest differences between the civil law and the
Continental systems distinguish, however, among defendants, expert common law processes is pre-trial disclosure of evidence.
witnesses and simple witnesses for the purposes of formulating As already indicated, in continental countries the defend-
procedural and evidentiary rules concerning, for example, the manner ant and his counsel have access to the entire investigative
and formalities of interrogation, duty to take an oath, and so forth. file (dossier) which contains, among other items, surn-
Another important difference . . . concerns the continental rule of per-
mitting all persons examined to give a narrative account fust, before rnaries of testimony, a record of all evidence obtained, the
being subjected to questioning. Thisfact, coupled with the more general charge sheet and related documents. From the dossierthe
preference for using 'spontaneous' rather than 'coached' witnesses, is of defendant can generally discover the prosecutor's theory
relevance. . . . 36 of the case, as well as what evidence will be submitted to
g. ~e@lncrirnination.As indicated, the defendant in a the court. On the other side, the pre-trial investigation will
disclose much of the defendant's case, as it is unusual for
the defendant to withhold information that ultimately will
31. See Damaska, supra, note 18, at 519. Uncharged des and
prior convictions often will be contained in the dossier which the presid- be introduced at trial. Additionally, the defendant's pri-
ing judge reviews before trial. Thus,it is not unreasonable to assume vate papers can be forcibly produced and placed in the
that in a close situation this expurte knowledge may affect the outcome. dossier. Therefore, the dossier will contain all the facts,
Id.
good and bad, that canbe ascertained before trial concern-
32. This procedure, depending on the jurisdiction, can influence
the conduct of witnesses, pretrial.discovery, and other aspects of a civil
law trial. 37. See Clapp, Privileges Against SeFIncrimination, 10 Rutgers L.
33. For example, testimonial privileges (especially those involving Rev. 541, 548 (1956).
the defendant himself) and matters involving search and seizure may be 38. Darnaska, supra, note 18, at 427.
included. See irlfra, notes. This right of silence is of a relatively recent vintage on the Continent.
34. A small number of civil law systems have adopted exclusionary The medieval inquisitorial procedure not only required the defendant
rules under such circumstances. See e.g., German Code of Criminal to testify, but also permitted enforcement of this duty through tor-
Procedure, 5 136a; French Code of Civil Procedure, arts.114, 11 8, 170. ture. After the use of torture was outlawed toward the end of the 18th
See also, Pieck, The Accused's Privi!ege Against Ser-Incrimination, 11 century, most continental procedural systems still provided that the
Am. J. Comp. L. 585 (1962). defendant had the 'duty to answer' and even threatened punishment
35. Damaska, supra, note 18, at 521-24. . . . for failure to obey it. Id. at 427, n. 1.
36. Id. at 525, n. 38. 39. Id. at 530-31.