C O M P A R AT I V E S T U D Y However, most of the European countries today, just like the common law ones, even explicitly state that the burden of proof is on the prosecution and have abandoned such position of the court to propose evidence, or at least such role is diminished to the benefit of court’s impartiality. Judges tend to be overly cautious not to give any appearance of favouring one party over the other. Any attempts by the judges to seek the truth – be it by investigating for evidence or excessively questioning witnesses during the trial (beyond asking the occasional question for clarification purposes) – would, at a minimum, give rise to an appearance of bias or lack of judicial independence. As a result, it is completely inappropriate for the Court to insist on further discussion about the evidence when the evidence presented by the prosecution is obviously leading to acquittal. Therefore, judges are generally restricted to the evidence presented to them by the parties since trials are party-driven. “The adversarial system trusts the parties to properly and honestly present their side of the argument, and expects that the truth will emerge from a robust presentation of each side’s case.”263 This system requires the parties (prosecution and defence lawyers) to be active: to investigate and gather evidence and to select the witnesses and documents they believe are relevant to their respective cases, subject to judicial scrutiny and approval. Defence lawyers are responsible for consulting with their client, developing a theory of the case, deciding whether to question prosecution witnesses at trial, selecting any witnesses from whom they may wish to adduce evidence, examining witnesses and presenting arguments at trial. The court is required to give the defendant an opportunity to comment on any evidence against him/her, even when the defendant used the right to not present his/her defence or answer questions: “... As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings.”264 Namely, if the court does not allow the defendant to present a defence and refute the evidence of the prosecution, it shall basically infringe the defendant’s right to presumption of innocence, by restricting the possibility of doubt that such defence can raise with the judge on the prosecutorial charges. Actually, defence lawyers are ethically bound to represent zealously their clients265 by, inter alia, raising every conceivable doubt by every conceivable acceptable means. Cynical as it may seem from Judge John W. Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 465-66 (2005). 264 Saidi v France, 14647/89, paragraph 43, ECHR. 265 This duty is universally recognized in virtually all national and international codes of professional ethics: The United States (“US”), American Bar Association Model Rules, Rule 1.3: “act with reasonable diligence and promptness in representing a client”; The United Kingdom (“UK”), Board Standard Bar Handbook, CD7: “to provide a competent standard of work and service to each client.” 263 59