In this paper I shall try to do two things: first, for those who do not have a detailed knowledge of criminal procedure in England, I shall give a bird's-eye view of what the victim's legal position is today. Secondly, I shall examine the difficulties, theoretical and practical, which make it hard to give the victim the deal which many of those who claim to speak for victims believe they ought to have.

In the last twenty years the victim, for long the “forgotten man” in the criminal justice system, has been rediscovered. Politicians of all parties have learnt that victims, and those who identify with them, have votes, and therefore need to be placated. Up to now, however, this has mainly been done by words rather than deeds.

An example is the document rather grandly entitled “The Victim's Charter”, which the Government issued in 1990 (with a revised version in 1996). Contrary to what the title “Charter” might lead one to suppose, this document confers no rights or privileges, but merely lists the ways in which the various parts of the machinery of criminal justice ‘ought’ to be sensitive to the position of the victim.

In general, the Dutch codification of Criminal law is constructed on the basic divisions that can be found in most Civil Law jurisdictions. The substantive law and the procedure are regulated in two separate Codes: the Penal Code (Wetboek van Strafrecht) and the Code of Criminal Procedure (Wetboek van Strafvordering). The present Penal Code came into force in 1886; the present Code of Criminal Procedure in 1926. Both Codes have been reformed often, but their basic features have been preserved.

The Code of Criminal Procedure regulates the due course of the procedure as a chronological sequence of investigations and decisions. A trial before a District Court (arrondissementsrechtbank), which sits as a chamber of three judges (meervoudige kamer), serves as a model for the manner in which trials must proceed. Most of its provisions are also applicable to trials before other Courts, such as those before the Court of Limited Jurisdiction (kantongerecht); the District Court with a single judge sitting alone in simple cases; the District Court, which handles appeals from the Court of Limited Jurisdiction; and the Court of Appeal, which handles appeals from the District Court.

In the last two decades the victim of crimes has been moved from the periphery to the centre of interest of penal law and criminal policy.

In the domain of substantive penal law the victimological approach created a trend toward the restriction of the field of application of certain penal provisions, especially in cases where the victim could have protected himself or herself more effectively, e.g., in fraud cases.

In the area of criminal procedure the trend has been toward an increased protection of the victim. This trend was extended gradually to the policies of crime prevention and influenced even the policies of enforcement of penal decisions and treatment of offenders. In this paper, however, I am going to address myself mainly to the problems of the protection of and assistance to the victim in the penal process, which raise a special concern, since they seem sometimes to be in conflict with other purposes of the penal law in general and the criminal process in particular.

Over the past two decades considerable interest has developed in the subject of the victims of crime. This interest reached a peak in the United States in 1982 with the establishment and report of the President's Task Force on Victims of Crime, which made numerous recommendations for legislative, executive, and other institutional action on both the Federal and State levels, including an amendment to the United States Constitution. The momentum, however, continued. Subsequent developments have included the establishment of an Office for Victims of Crime in the Office of Justice Programs, a flurry of legislative activity across the nation, and the declaration of National Victims' Rights Weeks with the participation of the U.S. President. The interests of victims have been taken up not only by special organizations established for the purpose, such as the National Organization of Victims' Assistance (NOVA), the Victims' Assistance Legal Organization in Virginia, and the National Victim Center (founded in honor of Sunny von Bulow) — as well as more narrowly focussed groups such as MADD (Mothers against Drunk Driving), but also by such mainstream professional bodies as the American Bar Association, the National Association of Attorneys General, the National Conference of the Judiciary, the American Psychological Association, and the National Institute for Mental Health.

When comparing the structure of the criminal procedure in the civil and the common law systems, one is soon confronted with the wide-spread belief of deep differences between the “inquisitorial” tradition on the one hand, and the “adversary” on the other. Consequently, one would expect differences between the Israeli criminal procedure, as mainly based on common law tradition, and the German procedure, as an example of a continental civil law system. If one takes a closer look, however, it appears that those assumptions of deep differences, at least in view of the practical result, are to a great extent mistaken because of foregone prejudices.

In recent years reform of the Law of Evidence has been the subject of renewed interest in many common law countries. Since the adoption of the Federal Rules, debate about wholesale reform has been relatively muted in the United States. But this is exceptional. Major reports have been produced in Australia, New Zealand, Canada, Scotland, and England. With the exception of Canada, most of these have led, or are likely to lead, to significant legislative changes. This period of reformist activity has coincided with a greatly increased interest in theoretical aspects of evidence and proof, sometimes referred to as “The New Evidence Scholarship”. The historical origins of these two movements are rather different, but their ways of talking and thinking about the subject are, of course, intimately connected.

You may know the standard illustration of chutzpa — the man who kills both his parents and then begs the sentencing court to have mercy on an orphan. In this article, I discuss a case of chutzpa that is nearly as outlandish — the criminal defendant who, having rendered his victim unavailable to testify, contends that evidence of the victim's statement should not be admitted against him because to do so would violate his right to confront her. I contend that in a case like this the defendant should be deemed to have forfeited the confrontation right. On the same grounds, if the jurisdiction applies a rule against hearsay, he should be deemed to have forfeited the right to invoke it against evidence of the statement.

The “DNA Wars” we are told are over. Two of the key, and at times most effective, participants in the battle, the FBI's Bruce Budowle and the leading early scientific skeptic, Eric Landers, have declared their own private truce and suggested that all are included. The controversial report of the first National Research Council Committee on DNA Evidence has in crucial respects been replaced by a second National Research Council Committee Report on DNA Evidence that has debuted to far better reviews than its predecessor and is likely to erase the earlier report's influence as courts grapple with DNA evidence. Yet all is not quite as peaceful as it appears; DNA2, despite its virtues does not adequately resolve all questions about the significance of DNA evidence, and some veterans of the DNA wars are not yet content to lay down their arms. We can better understand why the Landers-Budowle truce and DNA2 may not resolve all conflict if we first understand why disputes over the population genetics and statistical issues raised by the forensic use of DNA identification evidence became so heated that people came to speak of the “DNA Wars”.

Consider the following statements, which describe the Anglo-American laws of evidence:

The criminal trial system is regarded as standing at the pinnacle of the state's machinery for dealing with crime. But the courts deal with only a small proportion of crimes committed. Their function is more indirect: to express societal disapproval through a public and somewhat theatrical show. This is not to denigrate the role of the courts or dismiss it as futile. The criminal trial does have important functions in the development of norms for criminal responsibility and in fostering respect for the law. But its success in this regard hinges on the extent to which it is perceived as a just and effective method for dealing with those charged with crime. Put crudely, the success of the criminal justice system turns in large measure in the success of the show it puts on. But theatre is good only for as long as it is able to carry the audience with it, which, in the case of the courts, this means as long as the public is prepared to accept their verdicts at face value.

In modern criminal procedure it is generally held that reliability of results and basic fairness in criminal trials require that a defendant have legal counsel. Prevention of miscarriage of justice is tied closely, in the minds of policy makers and judges, with vigorous representation by competent counsel. As against these presuppositions how should one understand a modern system of criminal procedure, such as that in Israel, that does not have a broad right of representation for suspects or defendants in criminal cases?

It is by now axiomatic in England and the United States that nearly all defendants in criminal cases have a right to representation. This right encompasses not just the opportunity to bring one's privately retained counsel to court, but also an irrebuttable claim by indigents to have the counsel's bill paid by the state or other public entity. The right to counsel is a broad right, entailing a principle of equality in which representation by counsel is independent of the defendant's ability to pay. In Israel, in contrast, the right to representation in criminal cases is significantly narrower.

It is a curious quirk of legal scholarship that so much attention has been devoted to the rules and procedures that operate injury trials and so little to the way in which these rules and procedures operate in the vast majority of trials which are conducted without a jury. This “jury-centredness” as it has been called was noted almost thirty years ago by the American scholar Kenneth Culp Davis when he urged scholars and the legal profession to escape from the deep-seated habit of allowing all thinking about evidence law to be dominated by the needs of the 3% of trials that involve juries and to think instead about the needs of the remaining 97% of trials that are tried without a jury. It is certainly true that the withdrawal of the jury from many categories of cases throughout this century in many jurisdictions has not been accompanied by any instant changes in the law of evidence. Certain commentators have noted that in spite of Thayer's claim that the rules are the “child of the jury”, the rules of evidence have proved remarkably resilient in outlasting the demise of the jury. The parent may have ceased to exist in many legal proceedings but the child has lived on.

At first glance, appellate control of judicial fact-finding appears to be a precise and nicely circumscribed topic. This impression is grossly deceiving. To begin with, in a comparative context, it is inevitable to hint at the underlying structural features of the German criminal procedure, since appellate control is not a free-floating self-explanatory element of the criminal justice system, but built upon a particular procedural structure. Secondly, the control of fact-finding by the appeal court forms only a small and perhaps even the least important phase of the fact-finding process. Therefore it needs to be located within the larger perspective of the procedural fact-finding process as a whole. Thirdly, it goes without saying that the control process by way of appellate review is largely shaped by the different legal instruments of control. Knowledge of their operation and legal scope with particular emphasis on the fact-finding process cannot be taken for granted, even given an all-German audience.

Fourthly, the appellate control of judicial fact-finding cannot be understood by way of abstract description only: such a description needs to be underpinned by examples. This puts me in a predicament, since the pertinent standards developed by the appellate control amount to no less than an aggregate of the German law of evidence. Hence I have to restrict myself to a few paradigmatic examples hoping that they will reveal the structural pattern if there is one.