Bevisvärdering i brottmål - En kvantitativ studie av vittnesjäv i mål om våldtäkt

Sammanfattning: An important type of evidence in criminal cases consists of the interrogations held with different people at a main hearing. People who are not parties to the case are heard as witnesses. Legislation dealing with evidence in the form of witnesses cannot fail to take into account that these evidence are extremely variable. This with regard to the greater or lesser ability of a witness to give a true and complete statement. The legal theory of evidence and the laws that ruled in Sweden since the Middle Ages and well into the new era therefore took a position in excluding testimonies whose credibility could in one way or another be questioned. The law stated an evidence evaluation system for witness conflict which was divided into absolute conflict and relative conflict. Persons who were closely related to either party or financially interested in the outcome of the case were considered disqualified and therefore prevented from testifying. However, such a system was considered to be deficient because it was not possible to draw a line between trustworthy and unreliable witnesses. The testimony of that time is considered to be a contributing factor to erroneous conclusions and materially incorrect judgments. The introduction of the principle of free examination of evidence took a clear distance from the legal theory of evidence. The principle of free examination of evidence would lead to the above mentioned difficulties ceasing as everyone who has to do with the case could be heard as a witness, including relatives of a party to the case. The court would, with the help of the principle of free examination of evidence, take into account circumstances that may affect the assessment of a witness's credibility and take this fact into account when examining the value of the evidence in the trial. Due to this, an empirical examination of the decisions of the lower instances has been made in order to investigate how judges relate to the presence of a witness. It was also checked whether judges are objective in their assessment of the witness quarrel, that is, whether they make a difference in the assessment depending on which party invoked the witness. The study shows that the problem of a witness 'conflict remains because the court has not fully succeeded to consider the circumstances that affect the assessment of a witness' credibility. The study shows that a testimony dispute is of relevance, but despite this, the court in most cases has not paid any attention to the dispute relationship. Once the court has taken the dispute relationship into account the study shows that they do so to a greater extent on the part of the defendants in relation to the witnesses invoked by the plaintiffs. Potential explanations have been examined to answer why there is a difference in the assessment of a testimony. Although potential explanations can provide answers as to why this difference arose in their assessment of the witness dispute, they have not been considered to be able to justify the difference. The assessment of the witness dispute does not comply with the principle of “benefit of the doubt” but above all it contradicts the principle of free examination of evidence. The latter means, in contrast to the legal theory of evidence, that the judge is free in his evaluation of evidence. However, the fact that the judge is free in his or her evaluation of evidence does not mean that he or she may base his or her decision on a purely subjective view of the value of the various pieces of evidence. The principle means that the judge has a strong duty of objectivity while evaluating the evidence that appears in the case. It appears unrealistic and skewed that the legislator prescribes an absolute objectively evaluation of evidence with no subjective elements. This is particularly remarkable because the examination of evidence has been left to legal assessors to draw conscientious conclusions about the evidence on their own on the basis of "general theorems" and "common sense".