Bevisprövning och sömnstörningar
Sammanfattning: The ‘Sleepwalking Defence’ is not a new phenomena. The first murder case in which defence lawyers blamed the violent crime on an unconscious act performed by a sleeping defendant dates back to the mid 19th century. This essay investigates 75 such district court judgments of which 42 have been ruled by the Court of Appeals. Within Swedish criminal proceedings, the majority of cases where the accused has claimed to be asleep at the scene entail charges of sexual offenses or crimes related to driving a car. The medical research regarding sleepwalking (somnambulism) – and in particular sexsomnia (sleep sex) – is, relatively new. Progress is required in order to provide a satisfactory and comprehensive medical basis that will meet legal demands. However, the court is not in position to wait for these medical advances. As such, this body of research has identified nine procedural errors that the court can address to remedy the lag. The Swedish Supreme Court has declared that it is best practice for the courts to appoint an expert on the matter rather than an expert being hired by either of the opposing parties. Despite this declaration, the hiring of expert witnesses – including how the court gains expert knowledge – has been handed over to the parties. This essay postulates that providing an expert witness with a clear and specific request, one that includes a clinical sleep analysis of the accused, would address several of the current errors. Another error relates to methodological practices. Specifically, the method for evidence assessment that court has combined with the selected degree of evidential requirements, increases the risk that defendant statements will be assigned too high a probative value. Since the prosecutor’s burden of proof applies to the general theme of evidence rather than every single fact, the “balcony method” is the preferred method of legal assessment for cases involving a sleepwalking defence.
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