Is it permissible for the Public Prosecutor to submit new evidence at the trial stage? ▪
April 1st, 2013
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Investigations in criminal offences are conducted in accordance with specified procedures that are clearly set out in the Criminal Procedural Law in the form of described and specific forms; these must be adhered to during every procedure of an investigation in any criminal case. The Law has vested the powers relating to the detection of offenses, as well as the tracing of their perpetrators in the Public Prosecutors. The Law has also regulated the exercise of such powers by setting out the procedural standards by which the Public Prosecutor must abide when conducting any investigation within the authorities granted to him. These procedural standards must be followed during all the stages of the investigation proceedings; starting with the point at which it is suspected that an offense has been committed, through the various stages of the investigation, the collection of evidence, the presentation of the documents, and to the suspect’s interrogation. Once the Public Prosecutor has completed his investigation proceedings, he must conclude this stage by issuing a decision on it. The Public Prosecutor issues his decision which may be to hold the documents, prevent a trial, or to charge the defendant. Once such a decision is examined by the Attorney General, then the role of the Public Prosecutor in relation to the investigatory stage is completed and the Public Prosecutor is prohibited from taking any new investigatory actions including the collection of evidence. This is subject to an exception where the Public Prosecutor’s issued decision had been to prevent a trial on the grounds of insufficiency of evidence; it is only in such circumstances that the Public Prosecutor is authorized to initiate new investigatory actions where new evidence arises.
In the ‘Phosphate Case’, the Public Prosecutor finalized the investigation by issuing an ‘Indictment Decision’ recommending that the defendant be charged. After that, the Attorney General issued a decision to prosecute. Thereafter, the case was transferred to the court for trial along with a Bill of Indictment and a list of the prosecution’s witnesses as required by the Law. It is important to note that the Public Prosecutor has requested that he be granted time in order to submit new evidence to the court; this was done after the court had already heard most of the witnesses included in the prosecution’s witness list. Such a request is considered a violation of the procedural rules that govern criminal proceedings due to the fact that the Public Prosecutor had already concluded the investigation proceedings and had transferred the case to the competent court. In other words, by concluding the investigation proceedings, the case is no longer under the authority of the Public Prosecutor and therefore he does not have the powers to collect any further evidence. As there is no longer an ongoing investigation, the question arises as to on what basis has the Public Prosecutor collected new evidence when there is no investigatory case under his authority! The proper application of the procedural rules does not allow the Public Prosecutor to submit new evidence during the trial stage; this action not only violates the procedural rules but also constitutes a contradiction with the decisions already issued by the Public Prosecutor and the Attorney General on the case. Taking into consideration the fact that the Law requires these decisions to illustrate the act committed by the defendant, the date of its commission, its legal description, the evidence proving that the act has been committed, the legal clauses on which the decision has been based and the reasoning for the decision.
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It is vital to note that the facts underlying the offense must be determined from the evidence which the Public Prosecutor has collected during the investigation stage, this evidence must be sufficient to refer the defendant to the court for trial. The issue then becomes about what is to happen to those facts after the Public Prosecutor states that he has important new evidence which had not been considered prior to the issuance of his decision and which were not relied upon in the reasoning used by the Public Prosecutor in charging the defendant. The regulation of the investigation procedures using specific rules that must be adhered to when conducting any investigatory action is considered one of the most important guarantees of a fair trial in criminal proceedings, this is especially vital given that the investigation proceedings, by their very nature, intervene with or restrict the liberty of suspects. One of the most important guarantees to a fair trial is to comply with the constitutional and legal rule which states that ‘the accused is innocent until proven guilty’; the law has designed the investigation procedures in such a way so as to uphold this rule by providing that the burden of proof is placed on the Public Prosecution to provide conclusive evidence attesting to the fact that that the defendant has actually committed an offense prohibited by law. The Public Prosecution is bound to provide legitimate evidence (i.e. evidence obtained in the manner prescribed by the Law). Further, the collection of evidence must be done within the framework of the proper investigation proceedings during an ongoing case where the investigation has not been completed; the Public Prosecutor must rely on such evidence when issuing his decision with regards to the defendant. Any evidence obtained in a non-legitimate manner will not be considered as evidence in rebutting the presumption of innocence.
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Additionally, any such non-legitimate evidence casts doubt over the validity of the charges issued and the indictment decision, both of which were fundamental reasons for the case being brought in front of the competent court. If evidence constitutes the grounds on which the Bill of Indictment and the Indictment decision are issued, then what was the evidence on which the existing Bill of Indictment and the indictment decision were issued in this case? Also, how will those decisions be affected in light of the new evidence which the Public Prosecutor purports to present? It is important to recall that the trial proceedings require that evidence for the prosecution be heard first, after which the court decides whether or not there is a case against the accused. As such it can be inferred that the assessment made by the court on the criminal case is based, during this initial stage, on the examination and inspection of the evidence given by the prosecution. If the court finds this evidence not sufficient to prove that there is a case against the accused and not sufficient to rebut the presumption of innocence, then the court will issue a decision of ‘Not Guilty’ or ‘Not Responsible’ as the case may be. However, where the court finds the prosecuting evidence to be sufficient, it will allow the accused the opportunity to defend himself; this consists of the rebuttal and disproval of the evidence presented by the prosecutors. It is definitively shown by the above that the court’s decision on whether or not there is a sufficient case against the accused is based on the evidence relied upon in issuing the Bill of Indictment and the Indictment Decision. This affirms that the prevailing procedural rules in Jordan do not include any provisions allowing the Public Prosecutor to submit new evidence after the case has been transferred to the competent court for trial.
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