Dilemmas in Criminal Law
5.2. Dilemmas of a judge
5.2.1. Lack of moral certainty about the factual circumstances
Facts: a case examined by the District Court in G. was referred pursuant to Art. 28 § 3 of the Code of Criminal Procedure to a panel of three judges due to its particular complexity. After the hearings, the court retired to deliberation. In the course of discussion one of them raised objections about the description of the factual circumstances of the deed being the subject of the case as presented by the other members of the panel. The judge cannot pinpoint gaps in the evidence or in his colleagues’ line of reasoning but nevertheless has forebodings causing uneasiness of conscience, and, in consequence, a lack of moral certainty as to the facts. The other two judges claim that the factual circumstances of the deed were determined on the basis of all examined evidence, evaluated discretionarily with regard to common sense and indications of knowledge and life experience, namely according to Art. 10 of the Code of Criminal Procedure;
they hold that the third judge’s forebodings or intuition cannot be taken into account, since, in accordance with Art. 410 of the Code, only the entirety of the circumstances revealed in the course of the main court session may be grounds for sentence. However, the unconvinced judge considers not only voting against the sentence but also writing a dissenting opinion, pursuant to Art. 114 Par. 1 of the Code of Criminal Procedure.
Prima facie dilemma: the judge must decide whether to write a dissenting opinion, and thus publically manifest their lack of conviction as to the facts, assuming this may influence, for example, on any parties deciding to lodge an appeal. The other option is not to dissent, acknowledging that an uneasy conscience that cannot be translated into arguments may not be grounds to question the determinations of the whole panel.
Standard solution: filing a dissenting opinion is within a judge’s discretionary, so it is not a duty but a right. To exercise it could be regarded as moral duty if the judge had knowledge about mistakes in determining facts, the application of the law, or other inaccuracies in delivering justice. However, such
a move is not usually demanded of judges, as it is deemed to be a matter for their conscience.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense because conduct neither entail moral evil nor symmetry. Dissenting opinion is not a harm to other members of the adjudication panel, as it exercises the rights inherent to each of them. Also, not writing an opinion cannot be treated as harm to, for example, the accused, since it by no means limits their rights or precludes their lodging a successful appeal. It is a situation of a subjectively hard choice, in which a judge must decide whether their personal feeling is so strong to communicate it in the form of dissenting opinion.
5.2.2. Conviction about the wrongness of a regulation
Facts: a judge hears a case in which medical doctor Anna P. is charged with carrying out an induced abortion in Marta J., with the consent of the latter but in violation of the regulations of an act, namely constituting an offence under article 152 par. 1 of the Criminal Code. The violation referred to in the indictment consisted in the fact that, although the treatment was administered with reasonable suspicion that the pregnancy was the result of a criminal offence, thus under Art. 4a Section 1 item 3 of the Act of 7 January 1993 on Family Planning, Protection of Human Foetus and Pregnancy Termination Conditions, it was nevertheless carried out in the 13th week of pregnancy, contrary to Art. 4a Section 2 of this Act, which sets the limit of 12 weeks in this matter. In the course of the proceedings it was determined that pregnancy was the result of a particularly violent rape, and that Marta J.’s life was very difficult, which aroused deep compassion in the accused, Anna P. Due to these circumstances, a conviction would be unfair, and the difference between the 12th and 13th weeks was insignificant.
Prima facie dilemma: the judge has to decide whether to reach a verdict of guilty, and consider all the circumstances of the deed as extenuating in passing sentence within the framework provided by the penal act, which would definitely be against their subjective sense of justness, or to act contra legem, thus risking exposure to all the resulting negative consequences.
Standard solution: in positive law culture, it is accepted that the judge’s role is the application, not the evaluation, of law. Only in very rare cases of grossly unjust law are there provisions for refusal to apply it. It is hard to find grounds for it if regulations were checked and confirmed as constitutional.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense because the options are not symmetrical. Only the application of
law may bring harm, while refusal would be taken as breach of professional role and expose the judge to legal consequences. It is rather a conflict of conscience connected with law, or a legal dilemma. Its source may be the lack of legal possibility of attenuating the formalism of applying the law.
5.2.3. Contradicting expert opinions
Facts: in a case regarding an unintentional vehicular accident which caused grievous bodily harm to another person, i.e. an offence under Article 177 § 2 of the Criminal Code, finding out some circumstances of crucial significance for the resolution of the case requires special information. For that reason, the judge rendered a resolution admitting expert testimony. The expert witness statement did not, however, remove all doubts that arose in the case. In consequence, the judge stated that the situation is referred to in Art. 201 of the Code of Criminal Procedure, according to which, if the opinion issued is incomplete or unclear, contains a contradiction in itself, or opinions on the same matter are contradictory, the same experts may be recalled, or other experts may be appointed. On such grounds the judge appointed another expert, who gave an opinion with conclusions different from the previous one. In the face of two contradictory opinions, the judge called a third expert, whose statement was different from the previous two. In this situation, the judge considers: rendering yet another resolution admitting expert opinion testimony or acknowledging that some irrefutable doubts arose, and that they should lead to a verdict in favour of the defendant, namely acquittal.
Prima facie dilemma: the judge must decide whether to admit further opinions, which may prolong the proceedings and incur costs, as well as exposing them to charges of partiality and over-reliance on expert knowledge, but could finally lead to the resolution of all doubts, or to admit that ordering further opinions would be pointless in face of the hitherto expressed contradictions, and for that reason guilt beyond all doubt cannot be proven, although certain opinions indicate it.
Standard solution: in continental legal culture, criminal procedure is conducted according to the inquisitorial principle and material truth. This means that the court should hold an evidentiary hearing so that all doubts about the factual state of the case is removed, and those which cannot be removed should be considered in the defendant’s favour. Deciding whether doubts are irremovable falls within the role of the judge, who draws this conclusion on the basis of evidence evaluated freely through the lens of knowledge and life experience.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense, because it follows from the lack of knowledge on the effectiveness of issuing yet another expert opinion. Hence it is rather an epistemic dilemma.
Each of the options naturally gives rise to certain moral consequences, but the choice before the judge is epistemic.
5.2.4. Delegation of a judge vs the principle of a panel’s immutability
Facts: a judge of a regional court adjudicating in the criminal division was offered delegation to the Ministry of Justice, to take up office related to an administrative review of courts’ activity. The acceptance of the offer will entail suspension of adjudicating duties, and in consequence this will cause the necessity to remand the cases in his department pursuant to the principle of panel immutability as expressed in Art. 402 § 2 CCP. Some of the cases may therefore become statute-barred because of that, and the judge cannot exclude that the offer he got was intended to bring about such an effect.
Prima facie dilemma: the judge must decide whether to agree to the delegation and accept the consequences resulting from the necessity to remand the cases, including the risk of their prescription, or to decline to take on new responsibilities, which are an opportunity for personal development, in order to perform present duties with no harm to the cases they already have.
Standard solution: the issues of case assignment and delegation of judges belong to the sphere of court administration and organisation. Thus, a judge is not directly responsible for how many cases are assigned to them and how much time will be needed to hear them. The legislator, when providing for the possibility of judge delegation, did not set conditions for the conclusion of ongoing proceedings.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense, because by declining the delegation offer the judge will not cause harm, and if they accept it, the responsibility for the harm done, namely prescription, will be due to the organisation of the judiciary and not to the judge’s decision.
Therefore, it is a situation of a subjectively tough choice.
5.2.5. Waiver of professional confidentiality
Facts: The District Public Prosecutor’s Office in K., carrying out preparatory proceedings, filed a motion to the District Court in K. to waive professional confidentiality from legal counsels employed by a construction company.
Proceedings are pending against the former president of the company, who is charged with acting to the detriment of the company, i.e. an offence under Art. 296 § 1 CC. The motion on waiving professional confidentiality was substantiated because, due to the suspect’s activity, the documents necessary for the evidentiary proceedings were destroyed, and only interviewing the company’s lawyers may lead to determining their content. The prosecution maintains at the same time that the conditions for such a waiver are met under Art. 180 § 2 CCP, namely that it is necessary for the benefit of the administration of justice and the fact-situation cannot be established on the basis of other evidence.
Prima facie dilemma: the judge must decide whether to share the opinion of the prosecutor, who is well acquainted with the evidence but also interprets the evaluative conditions of an official confidentiality waiver through the lens of the benefit of the preparatory proceedings, or to take as the supreme argument the unique character of waiving professional confidentiality, which character makes its premises subject to obligatorily restrictive interpretation.
Standard solution: the judge must interpret the premises for waiving official confidentiality in the context of a specific situation. This is due to the fact that they are general clauses, and thus the court must make ad casum judgements on their grounds. Therefore, it must decide whether, in a given situation, the benefit for the administration of justice takes precedence over the protection of professional confidentiality. Hence, the court is also obliged to take into account whether the prosecution really exhausted all other ways of determining certain circumstances.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense, because the options of conduct and the involved values were hierarchised by the legislator, who pronounced the benefit to justice administration – though, by way of exception – to take precedence. The judge’s role is only to apply the rule to a specific case. Due to the general clauses used in the provisions, this requires making evaluations. For this reason, the situation is a problem of law enforcement.
5.2.6. Pre-trial detention
Facts: a prosecutor has filed, in the district court in P., a motion for the pre-trial detention of Tomasz Z. The motion stated the high probability that the suspect committed an offence of handling stolen goods under 291 § 1 CC and indicated evidence proving this allegation. The prosecutor also pointed out that the aim of remand is primarily to prevent the accused committing more deeds of
this kind, which is also very probable. The judge considering the request agrees with the prosecutor’s allegations about the probability of having committed the crime and of committing similar crimes in the near future. However, he has doubts because Art. 249 § 1 CPC says that preventive measures may be applied first of all in order to secure the proper conduct of the proceedings, and only exceptionally to prevent a new serious offence from being committed by the accused. Since the prosecutor does not mention the first premise, only the second one should be considered. Yet the latter has the nature of an exception and should not be interpreted extensively. Handling stolen goods does not seem to the judge a serious offence, though the probability of committing more crimes is high.
Prima facie dilemma: the judge has to decide whether to order custody and prevent the defendant from committing further crimes, simultaneously making an extensive interpretation of the concept of “serious offence,” or to dismiss the request and risk that more prohibited acts will be carried out, which may cause public discontent.
Standard solution: law interpretation is the subject of many theories explaining its course and the methods applied. It is admissible to refer to the effects of the adopted interpretational variants, and this is called functional interpretation. It may lead to departing from the literal reading of a provision, and opting for either restrictive or extensive interpretation. According to the principle exceptiones non sunt extendae, extensive interpretation is subject to limitations. However, this principle is not absolute.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense, because it concerns law interpretation. Although the options of conduct create the possibility of doing harm, i.e. on one hand not preventing further offences and on the other breaching the legal certainty in reference to the accused. However, they are not symmetrical since only the possibility of committing more offences can be considered. Furthermore, impairment of legal certainty is characteristic of non-literal interpretation. Hence the situation is a problem of interpretation.
5.2.7. Notice of defence lawyer’s error
Facts: there is a criminal case with the obligatory participation of defence lawyer, and the accused has a court-assigned defence lawyer. During the proceedings, the judge notices that the defence is not properly prepared for the case – does not know the evidence, files motions whose consequences may be unfortunate for the accused, and does not challenge the prosecutor’s claims.
For that reason, the judge considers applying Art. 20 § 1 CCP, namely informing the Bar Council or other competent body in the event of a flagrant dereliction of procedural duty by the defence lawyer, demanding from the dean of the proper council that they send information in no less than 30 days about the undertaken actions resulting from the notice. However, the judge has doubts about whether this action might not be seen as lack of impartiality since for the prosecutor this may mean the court’s intervention for the defendant’s benefit, whereas from the perspective of the defence, as intervention in their activities and an attempt to exercise pressure, which would be in the interests of the prosecution. In any case this will negatively impact the courtroom relations.
Prima facie dilemma: the judge must decide whether to send the notice and so improve the quality of the defence but worsen the perception of the court’s impartiality and the relations in the courtroom, or to tolerate the unpreparedness of the defence and risk that the accused will not be properly represented, and in consequence the judge will have to conduct more ex officio proceedings, which could also affect the reception of their impartiality by the parties.
Standard solution: in the culture of statutory law, within the inquisitorial procedure the concept of passive defence dominates, and the court conducts many proceedings ex officio. As a result, less attention is given to implementation of the standards of good defence by lawyers. However, the judge can notify the professional self-governing body in the event of a flagrant breach of procedural duties by the defence lawyer. So, the judge has to decide whether dereliction of these duties is flagrant or less serious, but courtroom relations and the perception by those involved in proceedings are not premises for applying this interpretation.
Meta-ethical perspective: the situation is not a moral dilemma in the strict sense, as the notice to the relevant organisation is not a harm but just the contrary – it aims at improving the defence. If possible improvement of defence by the attorney, or worsening of relations in the courtroom, were understood as some kid of harm, then it would still not be symmetrical with the evil caused by improper defence. The fundamental issue is the assessment of whether a flagrant breach of duty occurred, which is an interpretational problem.
5.2.8. Criticism of public authority
Facts: in a case in which a public official faces a venality charge, the judge stated encroachment of authority by services conducting operational activities.
Notably, illicit provocation is highly probable. For that reason, the judge sent a relevant notice to the prosecution. Still, there is no doubt as to the guilt of
the accused, and a conviction is the verdict reached. The judge, aware that the services’ actions border on or breach the law resulting from the policy knowingly carried out by the management, decides to deliver a harsh critique of the officers’ conduct as part of their oral statement of reasons.
Prima facie dilemma: the judge must decide whether to ignore the breach of authority by the officers and acknowledge that the consequences of this will be drawn after separate proceedings on the grounds of the court’s notice, or to make open criticism, exposing themselves to charges of violating matter-of-factness in a verbal statement of reasons, formulating political judgements, and inconsistency in the face of a conviction.
Standard solution: according to The Set of Professional Conduct Principles for Judges, in the statement of reasons for their verdict the judge should refrain from utterances going beyond the factual necessity to justify the court’s position that could violate the dignity or honour of the participants in the case or of third parties. Hence, the judge must decide whether there is a factual necessity of blatantly criticising public authority. In practice, it is regarded that a court is a sphere of independence, so it is admissible that judges use poignant
Standard solution: according to The Set of Professional Conduct Principles for Judges, in the statement of reasons for their verdict the judge should refrain from utterances going beyond the factual necessity to justify the court’s position that could violate the dignity or honour of the participants in the case or of third parties. Hence, the judge must decide whether there is a factual necessity of blatantly criticising public authority. In practice, it is regarded that a court is a sphere of independence, so it is admissible that judges use poignant