2019 | 2 (218) | 97-127
Article title

The position of the accused in criminal trial as a personal source of evidence on the example of legal systems of Poland and England in comparative legal considerations

Title variants
Pozycja procesowa oskarżonego jako osobowego źródła dowodowego w Polsce i Anglii – rozważania prawno-porównawcze
Languages of publication
In this article the differences between the legal position of the accused in two legal systems: Poland and England are presented, as well as the consequences resulting from these differences. It present an analysis of the role played by the accused in criminal trial as a personal source of evidence and its procedural consequences: the form of deposition and the significance that is given to his statements. This element of the criminal process is one of the main differences between legal traditions. Therefore, they should be considered as an indicator of a given model of criminal trial. The first section discusses the right to remain silent and its consequences: the accused in both legal traditions is protected by the principle of nemo se ipsum accusare tenetur, which introduces freedom from providing evidence against oneself – but it is understood and applied differently in both systems. The limitations of this law in the Anglo-Saxon trial and the crit-icism of this solution are also presented in detail – but also the case law of the ECHR, which shows that such restrictions are in accordance with Article 6 of the Convention. The practical consequences of this solution are that in conti-nental Europe, the accused is rarely silent, since he is not under the danger of criminal responsibility. The second section discusses two different types of depo-sitions made in a criminal trial by the accused. If the accused does not want to exercise his right to silence, he may take an active part in the criminal trial. The law of the accused to remain silent results in a common consequence for both legal traditions: in the criminal process, the accused appears as a source of evi-dence or does not. This part of the article analyzes the manner of interrogating the accused at a hearing in the two selected legal models. The third section dis-cusses the third element of the trial position of the accused as a personal source of evidence, i.e. the right to plead guilty – stressing that there is a fundamental difference between recognizing it as a statement of knowledge or a declaration of will of the accused. It also presents the possibilities and means of assessment (evidential value) by the court of non-trial confessions and confessions before the law enforcement authorities. The summary presents the answer to the ques-tion asked in the beginning, in which legal tradition the position of the accused is in fact more favorable, i.e. in which the accused would prefer to be responsible for his actions in court.
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