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MIRJAN DAMASKA
from legal rules on the matter. The judges, it was proclaimed, remained bound by
rules of rational inference and the maxims of experience. And since observance of
these rules is obviously possible, the rectitude of the trial court’s factual findings
was subjected to systems of open or latent superior review. This understanding
of free evaluation of evidence was more recently embraced by the Strasbourg
court. Although it did not go so far as to proclaim that unreasoned judgments
necessarily violate the fairness of trials, its pronouncements on alternative ways of
safeguarding procedural justice are far from compelling.’ In short, the conclusion
seems warranted that in most continental European jurisdictions the system of
“conviction raisonné” has replaced the older system of “conviction intime” as the
dominant decision-making standard.
It should not be overlooked, however, that open or latent hierarchical review of
factual findings reduces the space for the trial court’s free evaluation of evidence. It
reduces this space to such a degree that it becomes questionable to claim that only
a few exceptions exist from legally unconstrained judicial assessment of probative
value. This claim can be sustained only by the unrealistic legal doctrine that court
decisions are not a source of law. It is true that appellate court decisions dealing
with factual issues are often deeply contextual, so that no clear and sharp edged
rules can be abstracted from them. Yet, rules capable of limiting the fact-finders’
freedom emerge in all jurisdictions. They are collected and usually even published.
If a judge is ignorant of these rules, or disregards them, it is often strained to
say that he or she has run afoul of extralegal precepts of logic or experience,
rather than he or she was insufficiently aware or respectful of the law. Take the
example of a prosecution witness who asserts that a video footage contains decisive
incriminating information, while the defendant refuses to consent to the playing
of the recording. If the appellate court rules that the defendant has the right of
refusal, and that no incriminating inference should be drawn from the exercise of
this right, a rule has emerged constraining the judge’s fact-finding freedom.* And
if in a subsequent case the trial judge justifies the judgment of conviction by the
defendant’s refusal to consent, it is only doctrinal legerdemain to blame him or
her for failing to observe extralegal considerations, rather than failing to follow
Bard, Karoly, Can the jury survive after the judgment of the ECHR in Taxquet v. Belgium,
in Bruce Ackerman et al. (eds.): Visions of Justice, Berlin, Duncker & Humblot, 2016, 79-93.
Many courts, including the European Court of Human Rights, have in fact forbidden
authorities to oblige the defendant to turn over incriminating documents. See Bard, Karoly,
Fairness in Criminal Proceedings: Article six of the European Human Rights Convention
in a comparative perspective, Budapest, Magyar Közlöny Kiadö, 2008, 290. Restrictions
on drawing inferences from the refusal follow from the widely accepted ban on drawing
negative inferences from the defendant’s silence. What remains controversial, however, is
whether lies detected in the defendant’s testimony can be interpreted to his detriment.
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