Not that long ago, Jeremy Bentham stated that a good judge is like a good father – at least in issues of evidence and proof regarding any misconduct of his various subordinates. Thus imagine one son being suspected of having stolen his brother’s pocket money - or what was left of it anyway. In order for such a sorry situation to be duly redressed, the facts of the case first need to be determined. Not a problem for Bentham. Fathers may use any means to bring the truth to light, as long as no higher interests are violated in the process.
This is lawlessness for the higher purpose of finding the truth and nothing but the truth. Though not always practically feasible, such anarchy has its advantages. Everybody concerned must more or less voluntarily cooperate in finding the facts of the matter. No more fiddling with - and hiding behind - burdens of proof and other niceties of evidential procedure as are detailed in civil procedure.
Thus the boys may be subjected to emotionally or even physically painful treatment, as long as reliable results can be reasonably expected.
Of course, legal real life for grown-ups and adults is generally much more complex, both in literature and in practice. No criminal defendant is obliged to cooperate in obtaining his (or her) own conviction, except for in well-defined exceptions
In civil law to the contrary, evidence must be adduced by the parties concerned, according to strict rules, which, amongst other things, relate to division of burdens of proof.
It is sometimes contended that law in practice is more diffuse, and that criminal evidence is treated as “civil” to a certain extent, for example by using a defendants’ silence against him or her. Not in a real civilization, one would think, as this would threaten to seriously weaken a criminal defendants’ positions vis-à-vis the public prosecution. On the other hand more, attention to historical truth, often at odds with parties’ powers and opportunities to furnish adequate proof, may do more justice in (or even to) civil procedure.
Of course not only Jeremy Bentham, but anybody gifted with a bit of non-legal common sense, takes it for granted that justice in adjudication is based on the facts of a case. Not on what parties may convince a court of, according to civil or ceremonial rules of evidence.
Despite this, the Supreme Court of The Netherlands has decided that proof, in criminal trials concerning a victims’ compensation, is to be determined by adversary rules of evidence, which are concerned with the requirement to furnish facts and divisions of burdens of proof. This may help some victims of crime, as defendants who are unwilling to incriminate themselves may feel forced to remain silent about the facts of a case. “He stole my racing bike. It was worth 10.000,-,- euros!” one plaintiff may exclaim. A defendant contradicting this by saying: “It was just an old wreck, ready to be thrown away” incriminates himself by implying theft. And so on…not only in cases concerning bicycles.
A much better solution would be to get rid of unnecessary rules of evidence and proof in civil procedures. Why not leave it to the courts to decide who is to prove what and why, with a view to finding the historical (or sometimes future) truth of the matter?
Not the case with our Supreme Court. But why may comforting victims of crime, or any objective to civilize criminal evidence and proof, be more important than truth? One would assume out of real balance, rather than as a consequence of the victim of crime’s potential misuse of such a levelling of the playing field.