iv. Judicial scrutiny of evidence
95.
Many jurisdictions prohibit the judge from
independently scrutinising the evidence supporting
the conviction (for example, the Philippines, with its
US-influenced criminal justice system). However
other jurisdictions require judicial authorities to
satisfy themselves that the conviction is supported
by evidence beyond the defendant’s admission of
guilt. Chile, for example, requires the prosecution to
adduce evidence beyond the facts in the indictment
to which the defendant agrees as part of the trial
waiver (known as “procedimiento abreviado”) in order
to sustain a conviction. In Macedonia, a judge can
reject the trial waiver (known as a “plea agreement”)
if the evidence does not support the charges to which
the defendant has pleaded guilty.
96.
Judicial scrutiny of the evidence tends to be more
comprehensive in systems that utilise abbreviated
trials, such as Finland, Germany, Romania and
Russia. In these systems, guilty pleas or confessions
may constitute one piece of evidence that may
be considered by the judge, but is not necessarily
dispositive in itself. In Argentina, there are multiple
levels of judicial review available: after the request for
a summary trial, the court evaluates the evidence and
fairness of the proceedings and either convicts or
acquits the defendant. However, parties can also reach
partial agreement, in which they settle exclusively the
facts of the offence and request a trial regarding the
guilt and penalty of the established facts.
97.
However, how meaningful this scrutiny is differs
substantially between and within jurisdictions. In
Serbia, one respondent complained that evidence
admitted in relation to trial waivers (known as “plea
agreements”) was not subject to the same standards
as it would be to establish guilt in trial; for example,
the court may hear the statements of co-defendants
without allowing cross-examination. In Romania, the
trial waiver system (known as the “abbreviated trial”)
is described in the survey as a largely formalistic
process of validating the conviction rather than an
independent evaluation of the sufficiency of the
evidence. Conversely, in Germany, judges in cases
involving trial waivers (known as “Absprachen”) may
take a more active role in examining evidence in order
to verify the confession of the defendant.
98. In New South Wales in Australia, while judges do not
engage in independent scrutiny of the evidence in
cases involving trial waivers (known as “guilty pleas”),
prosecutors must consult with victims and police
to ensure that any agreed-upon statement of facts
arising from charge negotiations constitutes a fair
and accurate account of the objective criminality of
the offender. There is, therefore, another mechanism
in a common law context in which the evidence, or
at least the agreed facts, is evaluated. Guidelines for
prosecutors also preclude them from engaging in trial
waivers where the evidence would be distorted, or
where the accused maintains his/her innocence.101
v.
Judicial scrutiny of procedure
99.
It is much more common for systems to require
some level of judicial scrutiny over the procedure,
most often through a mechanism by which judges
assure themselves that a trial waiver is given
voluntarily. This can be achieved through US-style
allocution, in which the judge may directly question
the defendant. An allocution, including an in-court
confession, features in the Finnish trial waiver system,
for example. In India and in Malaysia, the judge may
interview the defendant regarding the voluntariness
of his trial waiver (known in both jurisdictions as “plea
bargaining”) in camera, rather than in open court, to
reduce the level of intimidation the defendant may
feel speaking before the public prosecutor.
100.
However it is notable that no similar mechanism
exists, for example, in England and Wales despite
other systemic similarities to the US. Indeed in many
jurisdictions the judge has a duty, either explicit
or established through constitutional or other
constraints, to be satisfied that the trial waiver is being
entered into voluntarily, but no specific mechanism
for ensuring this is provided for in practice.
101. An additional opportunity for scrutiny of the procedure
lies in the possibility of appealing against convictions
following trial waivers on procedural grounds. In some
jurisdictions, the ability to do so is somewhat or entirely
limited, as in Macedonia and New Zealand. However,
many jurisdictions do allow for complaints of some
nature after a trial waiver. Waivers of appeal rights in
Germany are considered to be unlawful and can be
overcome on appeal, according to our respondents,
and Georgia, for example, provides for a 15-day appeal
period for defendants who consider their procedural
rights to have been violated. In Chile, defendants
may, in limited cases, waive their right to a trial on the
alleged facts while still challenging that the activity
constitutes a criminal offence.102
101. Despite this guideline, defendants may plead guilty whilst maintaining innocence if they provide specific written instructions to that effect to counsel. See R v. Allison
[2003] QCA 125 at para. 26 per Jerrard JA.
102. The People vs Lavanderos 16 de julio de 2005, Rol 532-2005-RPP.
54.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents