Evidence & Objections: Domestic and International Standards EVIDENCE & OBJECTIONS: DOMESTIC AND INTERNATIONAL STANDARDS Copyrights 2016 OSCE Mission to Skopje This publication is available in pdf form on the web site of the OSCE Mission to Skopje CIP - Каталогизација во публикација Национална и универзитетска библиотека “Св. Климент Охридски”, Скопје 347.94 EVIDENCE & objections : domestic and international standards / [preface Michael G. Karnavas]. - Skopje : OBSE, 2016. - 86 стр. ; 25 см Содржи и: Annex ISBN 978-608-4788-12-6 а) Кривична постапка - Докази - Приговори COBISS.MK-ID 102199050 Published by OSCE Mission to Skopje Boulevard 8 October, 1000 Skopje http://www.osce.org/skopje Prepared by Michael G. Karnavas Printed by Polyesterday The content of this publication does not necessarily represent the view or the position of the OSCE Mission to Skopje.The Mission adheres to PC.DEC/81. 2 EVIDENCE & OBJECTIONS: DOMESTIC AND INTERNATIONAL STANDARDS PREFACE The new Law on Criminal Procedure (hereinafter: LCP) requires defense lawyers to be proactive, especially during the trial proceedings. Being proactive means having an abiding appreciation of certain fundamental evidentiary principles. This is essential in order to make cogent and reasoned arguments as to why certain evidence should be excluded or given limited weight, and why certain evidence shouldbe admitted, especially if all required preconditions are met. During the trial proceedings, these arguments are orally made, and are known as objections. This material on Evidence & Objections is designed to familiarize experienced lawyers trained in the civil law system with the fundamental principles of the law on evidence and evidentiary objections. Michael G. Karnavas 3 EVIDENCE & OBJECTIONS: DOMESTIC AND INTERNATIONAL STANDARDS CONTENT Introduction 7 Evidence 11 General principles of evidence 11 Foundational Requirements 12 Witnesses 16 Other types of evidence 23 Privileges 27 Objections 29 General on objections 29 Basic types of objections 32 More on the basic types of objections 34 Annex 1 Application of evidence principles to LCP 45 Annex 2 Basic adversarial principles and skills 61 Case preparation - an overview 61 Checklist for preparing the case for trial 65 Effective use of investigators 67 Opening statement 69 Direct examination 70 Cross - examination 74 Impeachment 77 Examination of expert witnesses 80 Checklist for direct, cross-examination and direct examination 82 Motion practice 84 Closing argument 85 5 6 EVIDENCE & OBJECTIONS: DOMESTIC AND INTERNATIONAL STANDARDS old procedure where the judge selected and exhaustively examined the witnesses in INTRODUCTION fulfilling his or her responsibility of getting as close to the truth as possible. The judge continues to be exclusively responsible in Why a material on Evidence & Objections? freely evaluating the evidence according The procedure of the LCP is hybrid: part to his or her conviction obtained from the inquisitorial and part adversarial. It is a entire trial, with the understanding that party-driven procedure, with the parties in case of doubt the evidence should be (prosecution and defense) being involved evaluated in a light most favorable to the in gathering their respective evidence and accused. This new dynamic procedure, putting on their respective cases. however, requires the defense lawyer to be vigilant during the presentation of the The prosecution is independent in choosing evidence. It requires the defense lawyer to whom to investigate, whom to indict, the raise objections on the record concerning evidence it wishes to gather, the manner in the quality of the evidence and the manner which it collects the evidence, the witnesses in which the evidence is being presented; it wishes to speak to, the charges it wishes to hence the need for an appreciation of the include in the indictment, and the evidence principles of evidence and objections. it wishes to present at trial. Likewise, the defense is independent in conducting its But the LCP does not explicitly set out own investigation: which witnesses to speak any evidentiary rules. Nor does it provide to, what evidence to gather, and which a list of objections that may be implicitly witnesses and what evidence to present available in light of the hybrid nature at trial. The judge is neither as active as in of the proceedings. And in the civil law the civil law system, nor as passive as in the tradition, that which is permitted by law or common law system. procedure must be clearly stated in the text. Notwithstanding these limitations, certain During the trial proceedings, the parties are evidentiary principles seem to be applicable expected to lead the evidence by asking to or imbedded in the LCP, thus providing questions. No longer is the defense lawyer a sufficient underpinning for raising and passively sitting and listening to the judge making evidentiary objections during conduct the questioning, waiting to ask a various stages of the proceedings; hence question or two after the prosecution has this training on Evidence & Objections. It followed up on the judge’s questioning. must be emphasised that the evidentiary Now, the defense lawyer is expected to principles does not limit the court in its free engage the witnesses: cross-examining assessment evidence and facts finding. prosecution witnesses (mostly through leading questions), and direct examining Obligations Worth Stressing: Due Diligence defense witnesses (exclusively through & Preserving Errors for the Appeal with a open-ended questions unless the witness is Record. The concept of due diligence deals declared hostile). with the obligations lawyers have toward their clients. This is especially important in These added tools and modalities place the criminal matters, where defense lawyers defense lawyer in a position to meaningfully have a continuing obligation to ensure that participate during the trial proceedings. the client meaningfully enjoys throughout The LCP is much more dynamic than the the proceedings all guaranteed fair trial 7 rights. The defense lawyer’s ability to satisfy The basic rule in making a record is for the the duty of due diligence is paramount to defense lawyer to let the judge know what ensuring that the client receives effective he or she wants, why he or she thinks himself legal representation. or herself entitled to it, and to do so clearly enough for the judge to understand him or Preserving errors during the trial her at a time when the judge is able to do proceedings for the purpose of appeal is something about it. The judge’s function one of the most important due diligence during a trial is to administer justice. One obligations of a defense lawyer. Errors are way this is accomplished is by directing preserved by a thorough record. Simply, the flow of evidence to enable the truth to the record is everything that happens and is emerge (to the extent possible). The judges recorded / documented during the course preside over the trial in order to ensure that of the proceedings, from the investigation fair, honest, truthful, reliable and trustworthy all the way until the final judgement. evidence and testimony is given so that The record consists of: all submissions the case can be decided on that evidence. (motions, responses, replies, etc.), court Consequently, in raising any evidentiary rulings (orders, decisions, and judgments), issues before the court, the defense hearings, the trial itself (transcripts), all counsel’s core argument must always be exhibits admitted in evidence, and exhibits that it will be just or unjust if the court found inadmissible. considers or disregards the introduction of Thus, in order to make a record, defense certain evidence. counsel must conduct a thorough Some Preliminary Thoughts on Evidence investigation to search for evidence (and and Objections. The law of evidence is the properly collect it), make all necessary rules and principles used in proving facts written and oral submissions related to in legal proceedings. In other words, what the law and facts, and make and address evidence may be considered by the judges all relevant evidentiary objections in a in determining the facts of the case being timely and coherent fashion. With a record tried: what evidence should be admitted; that has properly preserved all the errors what evidence should be excluded. during the pre-trial and trial proceedings, a defense lawyer just might be able to The presumption of innocence and the resurrect a client’s case on appeal. The prosecution’s burden are the prism through errors are preserved for appeal when they which admissibility issues in a system with are reflected in the record. A failure to the free evaluation of the evidence should make the record may strip the client of a be viewed. An accused is entitled to a chance to overturn a conviction or preserve presumption of innocence. This presumption an acquittal. As the saying goes: God may places on the prosecution the burden of know, but the record must show. establishing the guilt of the accused by proving beyond a reasonable doubt all The record begins from day one of the the facts and circumstances which are investigations and runs until the rendering material and necessary to constitute the of the final judgement. Any addition to the crimes charged and the accused’s criminal record must be made as soon as possible. responsibility. This means bringing evidence forward as soon as it is discovered, making timely motions, and making timely objections. EVIDENCE & OBJECTIONS: DOMESTIC AND INTERNATIONAL STANDARDS In determining whether the prosecution This material is structured so that the established the guilt of the accused beyond participants will first be introduced to some a reasonable doubt for each count in the general principles of evidence found in indictment, the judge must consider whether adversarial systems. With these principles there is any other reasonable explanation of in mind, the most common objections are the evidence available other than guilt of the discussed – even if not applicable under the accused. Any ambiguity must be resolved LCP.