9 Evidence Law
1. Outline. Evidence law is probably the area where the biggest differences between English and Danish criminal procedure are to be found and it is probably also the area where comparisons are most difficult to draw, primarily due to the fact that a law of evidence along the lines adopted by the Common law has been specifically rejected by Danish law.
Instead Danish law adopted a very informal system, which generally leaves everything to the discretion of the court. One consequence of this has been that primary source material is scarce, because a stated reasoning behind the excercise of discretion will soon bind the court. The absence of reports applies both to material from the ordinary courts and from the Court of Complaint *13.
This in turn has led to neglect from text-book authors ~’14, who tend to spend most of their labour on pre-trial procedure. Some advice is to be had from the practitioners’ handbooks, but only rarely do they go beyond statements on the central core of the rules and explore their boundaries *15.
A further problem perhaps lies in the fact that with so much at stake, as is the case in serious criminal trials, there may well be a tendency for authors to wish to influence the future behaviour of their readers by portraying how the law should be practised, rather than what the bleak realities are. There are some statements to support such a point of view with regard to evidence *16.
Giving an outline of Danish criminal evidence to foreigners is also hampered by the traditional use of civil procedure in providing contrasting material. But aliens simply cannot be expected to know enough about Danish civil procedure to make that line of action worthwhile.
The very important subject of pre-trial disclosure has already been considered before.
2 Historical development. Under King Christian V’s Danish Law of 1683 (note the capitals, as in Law Reports) *17, which formed the basis of the law of criminal procedure until the Administration of Justice Act, a system of highly formal rules on the admissibility and weight of evidence.applied. At least at some stages of its development this system seems to have been very similar to the traditonal English evidence law *18.
The essence of the system seems to have been that in order to convict the court had to have what was termed “full proof”, normally in the shape of a confession in court (DL 1-15-1), certain documents, or the concurrent statements of 2 sworn witnesses (DL 1-13-1) The close relationship between the latter rule and section 1 of the English Treason Act 1795 (c. 7) is self-evident.
The code’s list of admissible evidence was originally thought to be exhaustive, and consequently indirect evidence was considered insufficient for convictions, except when the code provided otherwise, which it did in case of a number of offences. Particcllarly important and again very similar to the position of English law was that proof of the true ownership together with proof of possession by the accused sufficed for a conviction for theft. In some instances the indirect evidence could corroborate direct evidence.
As in contemporary English law certain groups could not give sworn evidence, including those with an interest in the outcome of the case, the dishonest, the insane and children, but these rules seems to have been continuously under pressure from restrictive construction. It is perhaps interesting to know that Danish courts administered the oath after the witness had been heard in order to confirm the statement, thus allowing the witness a chance to avoid perjury *19.
Clearly, such a system must result in a number of cases where there is prima facie evidence of guilt, but less evidence than necessary for a conviction. The solution to this problem changed over the years. Originally the accused could swear an oath of denial and then obtain an acquittal, but later he would either receive a lesser punishment than the mandatory minimum for the proven crime or be ‘acquitted of further prosecution’. This third verdict barred any future resumption of the case and secured his release from custody, but like a convict the accused would be considered dishonest for the rest of his life. Apparently a similar third verdict still exists in Scottish law.
Around the end of the 18th century a number of wide-ranging developments happened in Danish criminal procedure. Firstly, an improved legal education resulted in a higher quality of judges, and in consequence thereof a statute of 1799 ordered the judges to take an active role during the investigation of criminal cases, probably with the admirable intention of cutting the duration of the preliminary stages. Thus Danish courts, which so far had been accusatorial, came to belong to the inquisitorial school.
(Unfortunately, a system of criminal justice which combined an inquisitorial judge with an emphasis placed on confessions, as strict rules of admissibility guaranteed, was to prove itself unsound, and in some cases tragic. Probably, the worst abuse was the development of remanding in custody ‘pending confession’. It is thought-provoking that till this day pre-trial custody has remained a major issue of public concern, and resulted in Denmark losing a case before the European Court of Human Rights.*20.)
Incidentally, one of the main differences between English and continetal tradition is supposed to be the use of torture. In fact, the Danish Law 1-20-1 outlawed it, but a special statute permitted it in the Copenhagen jurisdiction it in cases of larceny. The use declined over the years, from app. 1750 only flogging occurred, in 1770 it was abolished, though reintroduced a year later after a coup d’etat, henceforward it withered away and was finally abolished in 1834.
The second main development in the early years of the 19th century was that Anders Sandøe Ørsted, who was to become Denmarks most influential lawyer ever, began a campaign in favour of admitting and discretionarily considering circumstantial evidence. He did so by showing, that just as circumstantial evidence depends on the drawing of logical inferences, so does direct evidence, and that consequently the crucial element is not the nature of the evidence, but the reasoning behind the judgment. According to Ørsted, the criterion on which to judge the reasoning is whether it can be conveyed to another person or not. Incidentally, he also showed that this apparently novel theory was in accordance with the existing law, by referring to cases which he himself had taken part in deciding and had reported in a journal he edited.
The first statutory recognition of this development came when a statute (also drafted by Ørsted, now the procurator-general) recognised the use of circumstantial evidence in 1841 and from 1856 henceforward the Supreme Court was required to state its reasoning in its judgments, though for many years without referring dissenting opinions. With tongue in cheek one might ask, how this professed belief in giving reasons is to be squared with juries only answering yes or no to the question of guilt?
Accepting circumstantial evidence naturally meant the erosion of the rules on the relative weight of evidence and consequently the corroboration requirements developed into a highly complicated set of rules of an almost arithmetical nature. This in turn gave rise to proposals to permit judges to consider all evidence discretionarily and the concept became known as the principle of free evaluation of evidence. It was gradually adopted by the courts during the second half of the 19th century and eventually it also became incorporated in the Administration of Justice Act.
The relevant statutory provision in criminal cases is found in § 896, which states that no rules of statute shall determine the weight of the evidence before the court *21. A consequence of the principle of free evaluation of evidence was that the courts were set free to consider any type of evidence, whether it is original or hearsay, a convincing witness or a raving lunatic, because only the tribunal of fact decides the weight to be given to any source of evidence. It goes without saying, that counsel may suggest what weight to attach to a particular part of the evidence.
The discretionary consideration of evidence may well be one of the reasons for the lack of source-material. If judges make the reasoning behind their discretion available to counsel, then counsel will naturally insist that the reasoning must apply in other cases before the court.
While the discretionary adjudication into the practice of the courts, of facts just seeped the pledge to oral proceedings in the Constitution became a highly contested part of the court reforms.
As previously mentioned, prior to 1919 investigations were conducted by the local criminal judge who took depositions from the accused and witnesses. In due course those depositions would be used as evidence and apart from cases before the Supreme Court, the role of counsel would be limited to written submissions to the court. Before the Supreme Court, counsel would appear, but the evidence would still only be submitted by reading the depositions aloud.
No one doubted that the pledge in the Constitution to oral hearings meant that under a reformed law counsel would have to appear in person and argue the cases. But as far as hearing evidence was concerned, the Constitution might be construed to require no more than the recitation of the depositions, rather than the court actually hearing the witnesses. Conservative groups commonly thought that a reform would be far more expensive than warranted by the advantages it would bring, whereas reformists considered it essential, if the reforms were to have any effect.
The question eventually came to be known under the term ‘bevisumiddelbarhed’, which means evidential immediacy in the sense of ‘un-mediated’ or ‘first hand’ evidence *22. The whole idea probably seems artificial to someone who was trained in English law, as is indeed indicated by the absence of a corresponding term in English.
In the final bill of 1916 immediate evidence became the norm in all cases that were to be heard by juries, and when lay judges were introduced in 1936 first hand evidence came to be the norm in all cases. The principle has remained settled since then; though there are a number of exceptions, which I shall revert to later. An accidental consequence of the rule is that strictly applied it limits the admissibility of documentary hearsay.
3. Burden and standard of proof. While in general there is little literature to support any views on Danish evidence law, this particular subdivision is rather peculiar since the question has not only been considered, but also in that the most extensive account is written in English, namely Knud Waaben’s article criminal Responsibility and the Quantum of Proof in Scandinavian studies in Law 1965
The principal rule in Danish law is that the burden of proof rests with the prosecution. The legal basis for this is usually said to be the principle of ‘in dubio pro reo’, but it might, however, be argued that while the Administration of Justice Act replaced the Danish Law of Christian the Fifth whenever it covered the same matter there has never been an express repeal of the provision of the Danish Law laying the burden on the prosecution * 24. Whatever solution one chooses, the material position remains the same.
It is well known, that in English law there are 2 types of exceptions to the principle of laying the burden on the prosecution, namely, cases where the accused bears the persuasive burden i.e. must refute the prosecution’s contentions and those, where the accused has only an evidential burden, i.e. needs only adduce enough evidence to raise the question.
It is arguable that the main purpose of the evidential burden is to allow the judge to keep too fanciful a defence from the jury. But it may also be interpreted as requiring the defence counsel to draw the attention of the court to any possible defences, and thereby exclude appeals where it is contended that although counsel did not mention it during the trial, nevertheless the wise judge ought to have given a direction on some kind of defence and thus the conviction ought to be quashed.
Danish texts seemingly do not reflect on the consequences of any evidential burdens, but simply state that the prosecution does not have to bring evidence about non- apparent defences *25. It will be in line with this to assume that in the circumstances covered by section 101 of the Magistrates’ Courts Act 1980 (c. 43) the defence has an evidential though not a persuasive burden. In the latter of the two meanings an evidential burden would not have any practical importance, because the rules on the outcome of appeals would normally only lead to a retrial and not to a definitive acquittal. As far as putting fanciful defences to the jury is concerned, there does not seem to be any recent reported instances where the question was given consideration, probably because the defences of insanity and minority have to be left to the jury at the request of either party (§ 889). In other cases the judges probably trust the jury to see its lack of merit. In practice the important thing is that most defences are brought in issue by the prosecution under its obligation to fairness in § 711, and that this extends to the question of insanity.
The normal assertion is that in Danish law the persuasive burden never shifts to the defense except when there is contrary statutory provision. Proper reversals of the persuasive burden have existed, but I do not recall any presently in force. [2018-addition: One might argue that the proof of truth as a defence in defamation cases is an example.]
Far more common, and less controversial, are rules that interfere with the normal constituents of an offence and obtains the same results, e.g. lowers the requisite level of mens rea from the normal dolus (i.e. in broad terms intention or recklesness) to the merely negligent or even to strict liability. A clear cut example is handling, for which sometimes only gross negligence is required, or § 19 of the Criminal Law Act, which reduces all the regulatory offences outside the act to negligent offences. Other smart drafting techniques include advancing the stage, where the offence is considered committed rather than attempted, e.g. stealing is the ‘removal of another’s chattel in order to obtain unlawful profit by its appropriation’, thereby avoiding dubious constructions of appropiation *26.
As far as the quantum of proof is concerned, there does not seem to be a recognized distinction between a standard of proof beyond reasonable doubt for the prosecution and one of only the balance of probabilities for the defence, but then it does not really matter when the burden only very rarely would be on the defence.
Different from the question whether Danish courts distinguish the standard of proof according to the parties, is the common assertion that a conviction in the criminal court requires a higher standard of proof than does a civil action *27. This is contrary to the traditional position i.e. that of the Danish Law, which required ‘full proof’ in both criminal and civil cases. At least theoretically confirmation of dual standards should be easy to find, namely by a criminal case being decided contrary to a joint civil suit for the same wrong. Unfortunately, I have been unable to discover such a case, probably because the majority of joint actions relate to the Traffic Act, which has strict liability for motorists *28. It is probably more true that in both civil and criminal cases the required standard of proof is variable in proportion to the seriousness of the question considered and the defence forwarded *29.
[2018-addition: § 992 provides, that cases where there is insufficient proof to convict then the civil question must be dismissed and subject to separate civil proceedings. This confirms indirectly that 2 standards of proof are supposed to exists. The reality – based on my experiences since 1989 – is, however, that the notion of a variable standard from case to case is a fair description and an effect of the discretionary weight attached to evidence]
Corroboration is a further English concept that could be said to relate to the weight of evidence, but which cannot be found in Danish law. For strangers to the English system, corroboration may be said to be a requirement that in specified circumstances, particularly sexual offences, evidence from 2 independent sources is necessary to convict. In a further number of cases the jury must be warned of the dangers of convicting on the basis of uncorroborated evidence. The rules are in the words of a senior judge ‘a mess’ and they have gradually decreased in importance, but they are an important and not unsuccessful ground of appeal.[The judge in question was the then Lord Chief Justice in a private meeting with students from Cambridge.]
One major difference, does indeed seem to be the absence of magic formulae, which chairmen in the Danish High Court have to use during their summing up in order to avert succesful appeals.
It has traditionally been said that the court in a criminal case as opposed to a civil law-suit is charged with finding the ‘substantive’ or ‘material truth’. The concept is supposed to be one of the major differences between the two, but what it actually means has always been left in rather vague terms. It appears that the term is also used in German adjective law, but whether its content there is the same, I do not know *30.
Instantly, one might think it had something to do with the court’s beliefs in its own judgments, but it simply cannot be taken to imply, that the court should only convict when it has been convinced that the accused is guilty, because that seems to be the case even without applying any fancy principles *31.
What then is the attitude of civil procedural law to finding the truth? It is well known that civil cases fall in two categories, namely those governed by mandatory substantive rules, e.g. divorce-cases, and all others where the parties by common consent may dispend with rules of law. On the continent the latter type are commonly known as dispositive cases.
To develop this further, it is common knowledge that in both Danish and English law a divorce may only be obtained if one or more legally recognized grounds for dissolution of the marriage exist, and as until recent changes in England those grounds did not include the unqualified common consent couples might be tempted to give false testimony to obtain the desired judgment. Various devices have been used to counter this tendency, in England the Queen’s proctor, whereas in Denmark it is the court, which has a duty to ensure that there is proof of the facts upon which the parties rely, and for this purpose it may call evidence. Consequently, the court cannot be bound by any formal admission of facts by one or both parties; in other words it may said to be charged with establishing the ‘material truth’.
This is indeed parallel to the principle of Danish criminal procedure, that the court cannot be bound by any formal admissions facts and that it may only accept a plea of guilty if all other evidence available to the court points to the defendants guilt. On appeal from conviction this has lead to strange results in rare cases, where at the conclusion of hearing evidence the prosecution wishes to withdraw its case, but the court still convicts, because it considers the evidence sufficient *32. Strangely enough, in the courts of first instance the prosecution may withdraw its case at any stage until the case is submitted to the court (jury) for judgment and if that is done an acquittal is mandatory (§ 728).
In my submission thus the core of the principle of ‘substantive truth’ is that the court must have some evidence of all the constituents of an offence before it may convict and that it cannot be required by the parties not to take account of evidence before it.
The provisions in §§ 880, stk. 3 and 873 allowing the court to call further evidence and to put clarifying questions to witnesses (as may jurors etc. under § 875) must be seen in the same light. As a matter of public policy, parties with ulterior motives are not to be allowed to force the court to reach the wrong conclusions by withholding obviously valuable evidence, but that is also in theory the case in English law. The first provision is apparently rarely used, and then normally with intent to favour the defence, whereas questions elaborating the case are quite common. The reasoning behind the rule in § 880, stk. 1 allowing for late admission of undisclosed evidence seems to be the very same. In order to avoid ‘trial by ambush’ late evidence may result in a stay of proceedings (880, stk. 2) and adverse rulings on costs (§ 1010).
4. General rules on admissibility. It is a distinctive feature of Danish adjective law that the emphasis is on the weight to be attached to the evidence, rather than the question of its admissibility.
Whereas there are very few restrictions on what information the court may receive, there are a some rules on the means of evidence (parol, documentary et cetera) whereby the court may receive information. Although contentious, it is my submission that originally the question of how, rather than whether or not, evidence is admissible was the only problem in Danish evidence law. Whether that is still so, is probably the main question of present evidence law.
The principal rules of evidence law is § 148, stk. 1 stating that cases should be heard orally, and § 174 on immediacy, the result of which is a general exclusion of documentary evidence.
The only general exclusionary rule is to be found in § 871, which allows the bench to rule superfluous evidence inadmissible and thus sets up a negative requirement of relevance. The rule is primarily used to limit side issues such as the general credibility of a certain class of witnesses *33. As far as the main issue of guilt is concerned I only know of one relevant decision and having been retained on that case my views are somewhat biased *34. It is rather more interesting that in § 880 the Act expressly provides that evidence cannot be inadmissible on the ground that it was not included in the pre-trial list of evidence.
There is no statutory rule corresponding to section 78 of the Police and Criminal Evidence Act 1984 (c. 60) giving the judge a general discretion to exclude evidence, which he considers prejudicial for a fair trial. Nor is there a parallel to the common law power to exclude evidence, which is considered more prejudicial than probitive. One reason for this may be that as one of the reasons for introducing lay elements in the court process was a general distrust of state judges and a corresponding belief in the common sense of the laymen, it would be contradictory to withold evidence from the laymen on the ground that it would prejudice their minds. Attention should perhaps also be given to the fact that the English rules are quite recent, having apparently only become settled in this century, and consequently, later than the major developments in Danish evidence law. I have little doubt that the suggestion of such a rule would be rejected by almost all Danish lawyers. However, in the case of a man, who under foreign law had entered into a plea-bargain that was subject to annullment, if he committed perjury, it was held by the Supreme Court that his obvious interest in testifying in accordance with his previous statements to the police made his testimony inadmissible. I submit that this decision was reached per incuriam and a most remarkable fact is that nowhere in the judgment does it give any reference to any purported rule of law. In fact the court seems to have invented a discretion for which there is no legal basis *35.
Illegally obtained evidence has as a general rule been admissible, but the position on this point is changing towards a more restrictive attitude, which has been expressed in statute in the case of evidence obtained via a breach of the privacy of communications (§ 789). It was a great surprise at least to me that English law traditionally holds the same opinion as the older Danish law.
A rule of best evidence does not apply, but it is naturally in the self-interest of the party concerned to submit the best evidence, and it may probably in a marginal case result in adverse rulings on costs. For the benefit of Danish readers it should be added that the best evidence rule has disappeared from English law.
Equally, there is no general provision against hearsay in any form. Again for the benefir of readers, who arenot versed in Anglo-American law,it should be stressed that the hearsay-rule in English law now normally only applies in criminal courts and that a number of exceptions to the rule have been created by recent statutes.
It followed from the rules requiring the oath to be given after the witness had testified that there was no need to develop the procedure of voir-dire or trial within a trial, during which in the absence of the jury it is established whether certain evidence is admissible. And it follows from the absence of principles of inadmissibility that there has not been any need to develop such rules at a later date, and indeed only rarely have I seen a Danish author suggest that a question be considered without the presence of the lay elements of the court *36. It must also be remembered that voir-dire would be meaningless in cases originationg in Town Courts as in Magistrates’ Courts. However, the court may under § 837 decide questions of admissibility before the trial.
Having said this, the individual types of evidence may be considered.
5. Exhibits. As the main purpose of the cry for immediacy was to have evidence submitted in its most original form, the presentation of exhibits have never presented any problem. Only in the case of documents is there a positive rule, namely § 877, stk. 1 allowing the use of documents that have been used to commit the crime or were produced in the course of it.
Under § 322, stk. 3 the court may undertake an inspection of the locus in quo provided all parties and the whole court is present.
6. Parol Evidence. Under Danish law oral evidence comes in 3 categories, the accused, witnesses to the offence, and expert witnesses. There is a special set of rules for each type.
Some special cases deserve mentioning. A co-accused, whose case has already been settled conclusively, is treated as a witness, a rule fairly similar to the interpretation of the phrase ‘every person charged with an offence’ of section 1 of the Criminal Evidence Act 1898 (c. 36).
Also the victim of the crime is normally regarded as a witness; the exception being private prosecutions, in which case the rules on parties in civil proceedings apply to both victim and defendant.
The Accused is under no obligation to testify. But what is his position if he chooses to do so? Until recently a person standing charges in an English court could choose between keeping his silence, making an unsworn statement from the dock, and giving evidence, i.e. a sworn statement. The middle solution, which was abolished by section 72 of the Criminal Justice Act 1982 (c. 48), did not involve a duty to speak the truth, whereas the last did and does.
In Danish law the position of an accused who chases to speak, resembles that of the maker of a statement from the dock in that he himself is exempt from prosecution for perjury (but the exemption does not extend to neither someone procuring the perjury, who is not himself an accomplice in the main-offence, nor to the procurement of false testimony from witnesses) *37. On the other hand, the statement is given from the witness-box, and not from the dock.
The testimony of the accused is normally the first parol evidence given at the trial (§ 868, stk. 1). Initially the chairman of the bench enquires about the identity of the accused and his willingness to speak, before leaving the examination to be undertaken by the prosecutor, who has to perform the task of both examining in chief and of showing the inconsistencies of the testimony by some kind of cross-examination.
It follows from being first that the accused cannot tailor his evidence to that of witnesses, but he has a right of reply after each witness (§ 870, stk. 2).
The accused, as weell as any other person appearing before the court, should normally be allowed to tell his story, rather than merely answering questions, but there is not the same strict regime of examination-rules as in British courts; though questions which presume the existence of a disputed fact are prohibited (S 752, stk. 3). The accused, naturally, has a right to decline answering any specific question.
Finally, it may be appropriate to add something about the ‘right of silence’, though what is actually meant by the phrase does at times seem somewhat unclear, at least in some of the older Danish sources. Initially it may be said that the rule relates to something more than the mere right to ‘shut up’, i.e. it also relates to the evidential weight attached to the defendant’s silence. However, aspects of the rule has been taken to apply both in circumstances where the defendant keeps his silence whether before or during the trial, and to the question of admitting a confession which has later been retracted, i.e. when silence follows after talking. The latter does seem too wide an application and this question is therefore considered below together with other matters relating to documentary hearsay.
The theoretical position of Danish law is quite uncertain and may require some explanation. The basic rule on the free evaluation of evidence in § 896 does not specially mention the right to silence, but if one turns to the equivalent rule for civil proceedings, which is found in § 344, then not only does it state that the court determines the facts of the case on basis of the evidence before it, but it also permits the court to take account of the reluctance of a party to testify or furnish available evidence. Does this difference then have any implications for the accused in criminal case?
Not in police prosecutions, because there the failure to attend or answer questions during the trial is deemed equivalent to a confession and may result in conviction provided the punishment does not rise above a fine (§ 934, stk.l).
In other cases the answer is probably, that silence during police interrogations is immaterial and probably will not even surface during the trial except in cases where a very imaginative defence suddenly appears in the last minute. Silence during the trial itself probably carries a very heavy weight in corroborating other evidence, but should never be sufficient on its own.
The Witness rules are nearly the same in both criminal and civi1 cases though their application may in some ways be different due to the more serious nature of the criminal law. In criminal trials nearly all witnesses are called by the prosecution because of its burden of proof and duty to be neutral. [2018-addition: And because the defence have so very strictly limited opportunity to talk to witnesses the prosecution will always be aware of any possible defence witnesses in advance. This also makes it rather difficult for the defence to suppress adverse evidence, since the police will have interrogated them in advance.]
The basic rule is that anyone has a duty witness for either side, but as always to appear as a this rule has exceptions. Some of these such as the Royal Family, diplomats, other defendants, and in appeal cases the members of the court below, do not merit much consideration. Far more important are the rules concerning certain professional privileges and the incompellability of the accused’s next of kin.
Danish law distinguishes between non-compellable witnesses, the exccuse (§ 171) and the excluded (§ 169 and 170). The difference between the two groups is that in the case of the excused they may themselves waive their privilege, whereas in the case of the excluded a waiver has to be given by somebody else, commonly the accused, but it could also be a third person.
The first thing to note about the excluded witness is that there will always be 2 sides involved, a witness and the privileged person (who could be a juridical person). Secondly, the same information may be covered by several grounds of exclusion, and then both the privileges must be waived.
The purpose behind the exclusion is the same as that behind legal requirements of confidentiality, namely to assure everyone of access to certain recognised confidantes without fear of publicity and indeed the rules on exclusion of the testimony build on the statutes requiring confidentiality from certain professions. As the purpose of the exclusion is to benefit the protected person, a question of exclusion cannot arise when the privileged himself has a duty to disclose the requested information, but fails to do so.
Witnesses, who are excluded as of right, are public servants holding information the disclosure of which would be prejudicial to the public interest (crown privilege), priests in recognised churches (so far only Christian), doctors and lawyers.
All other groups of whom confidentiality is required by statute may be excluded, whenever this is of substantial importance. This latter group is very diverse and includes not only ancillary health professions, such as chiropodists, but also business advisors such as banks and accountants, not to mention the Royal measurers and weighers, and certified translators.
The exclusion of a principal always includes his servants, thus a publicly employed nurse may be covered by both her own profession’s, a doctor’s and crown privilege.
The witness exclusion is probably breached whenever statute prescribes a civic duty to inform the authorities. There are 2 such rules in the criminal law Act (5§ 141 and 143) relating to the prevention of major crimes and to certain knowledge of that a convicted person is innocent. There is no case law on the subject *38.
In the case of public servants (outside matters of national security), doctors, and lawyers, except defence counsel, the veil of exclusion may be lifted by order of the court provided the testimony is of crucial importance, and it is warranted by the interests of the parties or the public. The provision has been used, for example, to request doctors in casualty wards to name patients requiring treatment for wounds after shooting incidents.
More disputed are the rules extending exclusion to the communications between the privileged person and the witness, but space does not permit a discussion here. It should only be noted, that communications held by the accused are liable to be seized and in general the rules are quite narrow.
An interesting feature of the exclusion is that there is no criminal liability for perjury committed by the witness and this is supposed to extend to accessories who are aware of the exclusion *39.
Turning to the excused witnesses, they may be said to equal the English concept of privilege against self-incrimination and noncompellability of the defendants spouse, but the Danish rules do seem to have a wider range. It is interesting that applying the terminology of Danish law, the position of the spouse in English law, would fall in the excluded category.
In my opinion the rules are of a somewhat more complicated structure than the witness-exclusion rules. The main rules are that close relatives of an accused need not testify, and that a witness need not testify if he or his close relatives would risk criminal prosecution, loss of livelihood, or other substantial damage.
Close relatives include present spouse (including at common law), parents, children and siblings. In a closely-knit family it may include further in-laws and case-law has held cousins excused.
In reality quite a large number of witnesses do not excuse themselves, and as claiming protection from self-incrimination is rather dangerous that happens only rarely.
The court has powers under the same conditions as for excluded witnesses to order the witness to testify in all other cases than self-incrimination and loss of livelihood to the witness itself, but great reluctance is shown. Space does not permit a fuller discussion.
In English law the wife may now be compelled by her husband to go into the witness box under section 80 (2) of the Police and Criminal Evidence Act 1984 (c. 60). The power to compel seems unneccessary whenever she has anything helpful to say and may otherwise result in coercion to commit perjury. In my submission the protection against being forced into perjury is a valid consideration and the position of English law undesirable. Danish law by the way considers it a mitigating factor to commit perjury in a situation where you might excuse yourself from giving evidence. The extension to accessories is somewhat uncertain *40.
A special excusal of considerable complexity applies to editors of newspapers and journals. This is due to a peculiar rule of Danish criminal law that an editor normally holds vicarious criminal liability for any article published without a named author. Most offences against the state are outside these rules.
The court is bound to give witnesses guidance on the contents of the non-compellability rules, if that appears necessary (§ 173). Both excluded and excused witnesses have a duty to appear for an initial examination of their compellability (§ 179).
The non-compellable witness may sometimes choose to give evidence, and in those cases it has been found right to offer the protection of the court to the privileged. Such protection may include closing the doors, or refusing publication of the proceedings (§ 173). In some widely debated drug-cases earlier this decade the Supreme Court held that the clause might be construed to allow withholding the names of witnesses from the accused. After several changes in the law the position is now that the address of a witness may be kept secret (§ 848, stk 2). A provision requiring the accused to leave the court during examination of witnesses has always existed in § 848, stk 1, and may also be used. The accused has a right to hear the record when he returns.
The means whereby a Danish witness may be compelled to speak may rise from merely being fetched by the police to detention until he testifies, but not longer than 6 months, a daily fine also up to 6 months, and liability for costs incurred by the refusal (§ 178).
Since 1965 Danish witnesses no longer testify on oath, but are simply reminded of their duty to tell the truth. After the initial establishment of identity by the bench counsel conducts the examination along lines similar to those for examination of the accused. Care should be taken to clarify whether the examination is based on the witness’ own observations or hearsay, so a general hearsay-rule, consequently, does not exist (§ 184, stk. 2).
The distinction between normal and expert witnesses might lend itself to a suggestion that there is a prohibition on normal witnesses giving their opinion, but that is not the case and as will be seen most of the special rules on expert evidence relate to the appointment of experts, whereas they are examined under the rules applying to normal witnesses mutatis mutandis.
Examination on the subject of the credibility and previous sexual experience of the witness is only possible with prior permission from the court (§ 185, stk 1 & 2), and permission will rarely be forthcoming *41.
However, unlike in England, Danish lawyers are permitted to mention the consistency of the witness’ previous statements. There is no parallel to the English rule, whereby attacks on the witness’ character opens the defendant to the same type of cross-examination, a rule which may be efficient in stopping mud-slinging, but which may also result in relevant information being withheld from the court.
Evidence may be given on commission under §§ 747 and 839. The evidence will be given at a court session, where both parties are represented. It is common to let children give evidence in this way. The admissibility of such evidence is considered below.
On the subject of Expert Witnesses there are rules on appointment by the court, analogous to the rules for civil procedure, but neither in the standard text-books nor in cases under the Criminal Law Act can I find any references to them. [2018-addition: Indeed, during 7 years working for a defence lawyer I encountered it only once and my principal had never experienced it before.]
In civil cases the expert is appointed by the court, but the parties put the questions to him and contrary to the rule in, countries influenced by the Code Napoleon the questions do not have to be agreed, and the court is “ever bound by the opinion.
If an expert opinion has been obtained unilaterally, particularly after litigation has begun, it will usually be inadmissible. The expert delivers his opinion in writing, and in civil cases he normally attends the hearing, but probably in order to reduce the costs of the trial that was not envisaged as the standard in criminal cases *42.
In the absence of case material I suppose that what is normally done is that contrary to the assumptions of the statute the police obtains the expert opinions they consider necessary and that they are then presented at the trial. A large number of the opinions must naturally originate from specialists in the police forces. In my opinion this practice raises the major issue of how the defence can have confidence in the expert. It matters so much because only rarely does the expert appear for examination in court *43 and next to never has the defence had direct and confidential access to equal expertise in order to prepare its questions, something that in my belief is a major disadvantage *44.
Medical evidence from the locus in quo is normally gathered by the police, and from humans e.g. victims or suspects by the local inspector of health (a doctor). It is normally sent for examination at the Institute of Forensic Medicine at one of the universities and a final opinion is then pronounced by selected members of a medico-legal council. The council which has been set up by statute and which consists of senior doctors in different fields, also gives opinions on psychiatric examinations of the accused. The opinions never bind the court, but may of course carry considerable persuasive weight.
7. Documentary hearsay. As already mentioned above the admission of documentary evidence is governed by § 877 of the Administration of Justice Act. The provision is arguably one of the most important and one of the most contentious in the whole of the Administration of Justice Act.
Historically, it can be traced back at least to the draft of 1375, where an altogether similar section appears. The draft of 1899 is substantially the same as the present clause, though a few words have been changed. It should be borne in mind when interpreting the clause that it predates sound recording, moving pictures and most of modern medical and technical evidence. Similarly the section does not take account of the changes that have occurred in the law on pretrial procedure.
Before going on to discuss the rules in Danish law, it is perhaps appropriate to mention that under present English law statements to the police may be upgraded and treated as depositions from the committal proceedings if only a paper- committal is held, and that these ‘depositions’ may tendered in evidence under the same conditions as real depositions. Such an upgrading is impossible in Danish law.
There are 3 subsections in § 877, the first dealing with original evidence, the second with unconditionally admissible hearsay, and the third providing for exceptional admission of normally inadmissible documents.
The main division between the two groups of hearsay is that entries into court records (depositions) are admissible, whereas records of statements made out of court are inadmissible. In some cases in either category admissibility is extended and in some it is qualified.
The qualifications making depositions admissible are that the maker of the statement is an accused, or is a witness who is now unavailable for examination, who gives contradictory testimony, or refuses to answer, or that the evidence was given on commission.
Out of court statements that are unconditionally admissible include expert statements and statements from persons outside the court’s jurisdiction, such as diplomats and the Royal Family. Similarly, statements and opinions from public servants and previous convicting judgments are admissible. In all probability this latter rule was meant to avoid the excessive rules on the proving of documents in English courts, but its meaning has been extended far beyond this and now includes such things as social inquiry reports, opinions by the Inspector of Motorvehicles, the Medico-legal Council, et cetera.
It is, however, when considering the exceptional admission of statements made out of court that problems are encountered and as the rules seem to have been developing in recent years it is probably best only to sketch their contents. It is also an area where differences between textbooks and real life seem particularly clear.
The framers of the act envisaged a criminal procedure consisting of 4 stages: an initial investigation by the police followed once a suspect had been charged by a committal stage under direction of an inquisitorial judge, then an intermediate stage after the indictment had been drawn up, and finally the trial. As a concession to those who wanted an adversarial procedure the act made the committal stage optional and consequently the weight of the pre-trial stages was shifted the from the court-room during committal to the police-station. It follows that a large part of the material envisaged as depositions from committal is now only to be had as police-records of statements made during informal interviews. This has probably also had consequences for the appointment of experts.
As already mentioned, the general rule is that statements to the police are inadmissible save when the court gives leave. The typical questions arising under the rule relate to statements to the police, or a police officer’s notes of searches, views etc. In either case the document may be tendered as a surrogate for oral testimony or in order to confront with the previous statement. Of course, attention centres on those instances, where the maker of the statement cannot be compelled to testify, and consequently, the defence stands to gain from the exclusion.
It follows that confrontation with previous statements is normal and that police notes on undisputed facts are admitted. The disputes conversely arise over retracted confessions, excused witnesse’s statements to the police and, more rarely, statements by unavailable witnesses.
It is perhaps worth noting that confrontation may be used not only to discredit the witness, but also as evidence of the facts stated in the document.
The English hearsay rule has an exception allowing for the admission of voluntary confessions, but that rule has no parallel in Danish law. The first draft of what is now § 896, the clause charging the court with weighing the evidence, did in fact render a retracted confession inadmissible, but at a later stage that rule was removed *45. In a different section of the enacted bill, a sentence appeared allowing the defendant to retract his confession without specifying the consequences of it, and it was consequently construed to have no consequences. The last references to retracted confessions were finally removed in 1978, and at least since then there can be no argument for an absolute bar to their admission.
The arguments left for counsel to pursue are, the absence of any duty to tell the truth to the police, whether a caution or guidance on non-compellability was given, whether counsel for the defence was present at the interview, whether in the light of the seriousness of the accusation an excused witness would have been compelled, whether admission is preferable to committing for contempt, et cetera. The outcome of the argument is uncertain.
Testimony by the police officer who put the statement in writing will be inadmissible whenever the document is so and vice versa. This is particularly interesting, because creates a hearsay rule for police officers, even though other hearsay statements are admissible. Why this is so, and whether it is based on a correct interpretation of the Administration of Justice Act is beyond the scope of this paper.