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När brottsoffret är den enda bevisningen - En utredning av HD:s metod för utsageanalys samt målsägandens partsställning i bevissyfte

Larsson, Liselotte (2008)
Department of Law
Abstract
The essay When the victim of a crime is the only evidence aims to discuss a matter that for many seem to be the hardest task for the court of law&semic as the assignment to reach a verdict in situations where words stands against words and no other direct evidence are to be found. The purpose of the study is to examine the victim's value as a person of evidence. Particularly in rape cases and other trials of sexual offences the court faces the difficult assignment to reach a verdict when the only direct evidence is the oral statement of the plaintiff. The first question analysed in this paper is how to evaluate the statement of the plaintiff and this question is discussed on the basis of a perspective of legal security. The essay further... (More)
The essay When the victim of a crime is the only evidence aims to discuss a matter that for many seem to be the hardest task for the court of law&semic as the assignment to reach a verdict in situations where words stands against words and no other direct evidence are to be found. The purpose of the study is to examine the victim's value as a person of evidence. Particularly in rape cases and other trials of sexual offences the court faces the difficult assignment to reach a verdict when the only direct evidence is the oral statement of the plaintiff. The first question analysed in this paper is how to evaluate the statement of the plaintiff and this question is discussed on the basis of a perspective of legal security. The essay further examines the question at issue whether the victim of a crime shall act as a party at the court proceedings or just be heard as a witness and if this affects the value as evidence of the victim. The later question includes a comparative study between Sweden on one hand and Finland, Denmark and Norway on the other. The prosecutor, or the plaintiff if the prosecution isn't public, carries the burden of proof in criminal cases and shall prove the defendants guilt beyond reasonable doubt. The judges of the court decide whether or not the prosecutor has succeeded with the assignment by evaluating the evidence. There are no rules confirmed by law for the evaluation process of oral statements and this derives from the principle of free evaluating of evidence. The only declarations mentioned in the motives to the Swedish code of procedure are that the evaluation shall be objective and that the oral statements of the parties are of great importance. Further information of which circumstances that affects the evaluation of the trustworthiness and reliability of the oral statements can be found in different judgements from the Swedish Supreme Court. The court deals with criterions based on the assumption that the quality of the truthful statement is settled with consideration to its length, consistency, clarity, number of details and coherency. The fulfilled criterions will be used as help for the interpretation of the reliability of the statement. The court shall also control the strength and quality of the oral statements with its overall impression. For example&semic the oral statement should not contain any circumstances that are difficult to explain or any circumstances that give reason to doubt. If the statement does contain these circumstances, the plaintiff has to clarify why. The court must further take the statement submits into account, if the oral statement gives the impression of being trustworthy or being the plaintiff's own experience and if some parts of the statement have been proven true or false and if this affects the other parts. It's my opinion, particularly when it comes to the later given criterions, that the evaluation of the oral statement must be done carefully because some of these criterions are not supported by behavioural science and in some cases even wrongly applied compared to the result of research. It is also distressing that the courts often are letting the trustworthiness of the plaintiff be taken in consideration in to a high extent, in view of the lack of objectivity in these evaluations. More important, according to my opinion, is to focus on the reliability of the oral statement. To reach a verdict based only on the oral statement of the victim is connected with the risk of incorrect sentences. This assumption can also be interpreted in case NJA 2005 s 712, where the Swedish Supreme Court indicates an increased requirement of evidence to support the oral statement of the victim. Thus&semic the victim's value as a person of evidence is high but not independent and complete. The question can then be asked if the status of the plaintiff as a party of the criminal proceedings affects the victim's value as a person of evidence. The victim of a crime is in Sweden, like in Finland, only being questioned by way of information and will not be held legally responsible for any provided untrue information. In both these countries the plaintiff also has great opportunities to reach status as a party of the criminal trial. Denmark and Norway, on the other hand, do not provide the plaintiffs the same prospects to reach status as a party litigant. The victim of the crime is in these countries also treated as other witnesses and the testimony is given under oath and is combined with the risk of legal measure for any untruly given information. Due to the risk of penalty the value as evidence of the oral statement is higher if the statement is given under oath. My conclusion is, however, that although the value as evidence might increase, the Swedish plaintiff status as a party litigant shall not be reduced and the interrogation of the plaintiff shall not be combined with legal responsibility. This is partly due to the disturbed equilibrium between the defendant and the plaintiff would deteriorate the position of the defendant and partly due to my belief that the courts do not have the ability to disregard the plaintiff personal interests in the case, which will effect the value as evidence even though the victim appears as a witness and not a party litigant. Reducing the possibility for the plaintiff to participate in the criminal proceedings in Swedish law does also contradict with the development towards a reinforcement of the position for victims of crime that in later years has come forward in the other Nordic countries. (Less)
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author
Larsson, Liselotte
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Processrätt, Straffrätt
language
Swedish
id
1559438
date added to LUP
2010-03-08 15:55:24
date last changed
2010-03-08 15:55:24
@misc{1559438,
  abstract     = {The essay When the victim of a crime is the only evidence aims to discuss a matter that for many seem to be the hardest task for the court of law&semic as the assignment to reach a verdict in situations where words stands against words and no other direct evidence are to be found. The purpose of the study is to examine the victim's value as a person of evidence. Particularly in rape cases and other trials of sexual offences the court faces the difficult assignment to reach a verdict when the only direct evidence is the oral statement of the plaintiff. The first question analysed in this paper is how to evaluate the statement of the plaintiff and this question is discussed on the basis of a perspective of legal security. The essay further examines the question at issue whether the victim of a crime shall act as a party at the court proceedings or just be heard as a witness and if this affects the value as evidence of the victim. The later question includes a comparative study between Sweden on one hand and Finland, Denmark and Norway on the other. The prosecutor, or the plaintiff if the prosecution isn't public, carries the burden of proof in criminal cases and shall prove the defendants guilt beyond reasonable doubt. The judges of the court decide whether or not the prosecutor has succeeded with the assignment by evaluating the evidence. There are no rules confirmed by law for the evaluation process of oral statements and this derives from the principle of free evaluating of evidence. The only declarations mentioned in the motives to the Swedish code of procedure are that the evaluation shall be objective and that the oral statements of the parties are of great importance. Further information of which circumstances that affects the evaluation of the trustworthiness and reliability of the oral statements can be found in different judgements from the Swedish Supreme Court. The court deals with criterions based on the assumption that the quality of the truthful statement is settled with consideration to its length, consistency, clarity, number of details and coherency. The fulfilled criterions will be used as help for the interpretation of the reliability of the statement. The court shall also control the strength and quality of the oral statements with its overall impression. For example&semic the oral statement should not contain any circumstances that are difficult to explain or any circumstances that give reason to doubt. If the statement does contain these circumstances, the plaintiff has to clarify why. The court must further take the statement submits into account, if the oral statement gives the impression of being trustworthy or being the plaintiff's own experience and if some parts of the statement have been proven true or false and if this affects the other parts. It's my opinion, particularly when it comes to the later given criterions, that the evaluation of the oral statement must be done carefully because some of these criterions are not supported by behavioural science and in some cases even wrongly applied compared to the result of research. It is also distressing that the courts often are letting the trustworthiness of the plaintiff be taken in consideration in to a high extent, in view of the lack of objectivity in these evaluations. More important, according to my opinion, is to focus on the reliability of the oral statement. To reach a verdict based only on the oral statement of the victim is connected with the risk of incorrect sentences. This assumption can also be interpreted in case NJA 2005 s 712, where the Swedish Supreme Court indicates an increased requirement of evidence to support the oral statement of the victim. Thus&semic the victim's value as a person of evidence is high but not independent and complete. The question can then be asked if the status of the plaintiff as a party of the criminal proceedings affects the victim's value as a person of evidence. The victim of a crime is in Sweden, like in Finland, only being questioned by way of information and will not be held legally responsible for any provided untrue information. In both these countries the plaintiff also has great opportunities to reach status as a party of the criminal trial. Denmark and Norway, on the other hand, do not provide the plaintiffs the same prospects to reach status as a party litigant. The victim of the crime is in these countries also treated as other witnesses and the testimony is given under oath and is combined with the risk of legal measure for any untruly given information. Due to the risk of penalty the value as evidence of the oral statement is higher if the statement is given under oath. My conclusion is, however, that although the value as evidence might increase, the Swedish plaintiff status as a party litigant shall not be reduced and the interrogation of the plaintiff shall not be combined with legal responsibility. This is partly due to the disturbed equilibrium between the defendant and the plaintiff would deteriorate the position of the defendant and partly due to my belief that the courts do not have the ability to disregard the plaintiff personal interests in the case, which will effect the value as evidence even though the victim appears as a witness and not a party litigant. Reducing the possibility for the plaintiff to participate in the criminal proceedings in Swedish law does also contradict with the development towards a reinforcement of the position for victims of crime that in later years has come forward in the other Nordic countries.},
  author       = {Larsson, Liselotte},
  keyword      = {Processrätt,Straffrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {När brottsoffret är den enda bevisningen - En utredning av HD:s metod för utsageanalys samt målsägandens partsställning i bevissyfte},
  year         = {2008},
}