Dokumenterade förhör som bevis i domstol – På bekostnad av rättssäkerhet?
Sammanfattning: With SOU 2017:98 Early interrogations - new evidence rules in criminal cases an extended opportunity is given, to use documented interrogations from the preliminary investigation as evidence in court. In this essay I investigate the part of the bill concerning that statements left by parties, and witnesses for evidence purposes, should be documented using audio and video during preliminary investigations to a larger extent, and then be presented in court. It involves several extensive changes in relation to the established law. Since the general rule in the existing regulation is a verbal procedure in court, and documented interrogations from preliminary investigations should only be used in exceptional cases. The aim is to investigate if there is room for the bill and to illustrate which opportunities and limitations the bill can entail for the criminal proceedings. Therefore, the question is which consequences an arrangement of documented interrogations from preliminary investigations could have, as evidence, from a rule of law perspective. The bill has proven positive in relation to the opportunity to take measures against crime. It primarily concerns witness examinations during preliminary investigations, which are conducted considerably closer to the actual event. Which in turn can provide a better basis for the assessment in the sense that the court will take part of a statement that occurred earlier from a memory point of view. From the witnesses’ party's perspective, the bill is beneficial to a larger extent. Since they dare to make statements in a safer environment, as opposed to being in front of the defendant during the main hearing. If an interrogation is assimilated during the preliminary investigation and then presented during the main hearing, the risk of having the suspect apply pressure, to affect what the witness might say, is not as great. When the prosecutor's evidence is ready at an earlier stage in the process, it may also lead to a more efficient proceeding. A consequence of this is the possibility of having a shorter remand period as well as reduced restriction usage. It reduces the risk of arbitrary exercise of power. It is being questioned whether or not the bill will affect oral procedure, immediacy in taking of evidence and contradiction, which is fundamental for court's ability to influence and carry out materially correct verdicts. My investigation shows that there is more room for a flexible procedure, as long as taking the principles into consideration. The suspect's right to defend himself may be restricted and the bill puts enormous demand on competence for the investigating authorities, police as well as prosecutor. In current rule of law, child interrogations are regularly being documented during preliminary investigations. After seeing the way proceedings with children interrogations work today, it can be established that this kind of competence does not exist to a sufficient extent. It means that interrogations during preliminary investigations are not always held with the necessary procedural guarantees, which are to be used by the court as statement and basis for a verdict. If interrogations are not held with such procedural guarantees, the court can dismiss them. It could lead to a non-efficient and drawn-out proceeding. In worst case, it could lead to a defendant being cleared from suspicion due to lack of evidence, which in itself is an obvious flaw for materially correct rulings. Forensic psychology studies and research have been done in regards to the presentation format and how it may affect the experience and assessment of an oral proceeding. The results vary, but there are indications pointing to statements being experienced differently depending on how it is presented, through an audio or video recording of a documented interrogation or heard orally from the witness. However, it does not provide an answer concerning the court's ability to influence and carry out materially correct verdicts. My conclusion is that there is room for extended usage of documented interrogations from the preliminary investigation, to be provided as evidence in some cases, but far from all of them. The bill brings positive and negative consequences from a rule of law perspective. At the same time, I believe there has not been a sufficient investigation regarding rule of law inquires. A procedure as the one being proposed will surely be implemented in the near future, the question is merely when, how and to what extent.
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