- The role of prosecutors
- Adversarial versus inquisitorial legal systems
- Mitigating punishment
- Granting immunity from prosecution
- Witness protection
Published in May 2018
Regional Perspective: Pacific Islands Region - added in November 2019
Regional Perspective: Eastern and Southern Africa - added in April 2020
This module is a resource for lecturers
Excerpts of legislation
Afghanistan: Criminal Procedure Code
Protective Measures for Witnesses, Article 53
(1) The prosecutor's office or court according to circumstances can issue a ruling to take one or more of the following actions to ensure the protection of the witness.
- Concealing the name, residential address, work place, occupation, official deed, registration book or file or any other information, which could lead to the identity of the witness.
- Forbidding the accused person's defense attorney to disclose the identity of the witness or any information that could lead to the identity of the witness.
- Avoiding the disclosure of any record or document which could lead to the identity of the witness, unless directed otherwise by a competent judge.
(2) In conditions set forth in paragraph (1) of this article, the witness is given an alias.
(3) Apparent and physical characteristics of the witness are concealed as follows:
- Testifying behind a nontransparent curtain.
- Testifying through a technical voice and visual changer device.
- Live broadcasting of the questioning from another location which will be connected to the court room via closed circuit television.
- Hearing the statements and testimony of the witness, and questioning of the witness using a pre-recorded video tape ahead of the trial, provided that the accused person's defense lawyer is present while the testimony of the witness is being recorded in a video tape.
- Removing the accused person from the court room for a temporary period of time if the witness refuses to testify in presence of the accused person or if the witness will not testify truthfully in the presence of the accused person. In such cases the defense attorney can remain in the court room and ask the witness questions. The witness testimony will be narrated to the accused person after he/she returns to the court room.
Witnesses That Will Receive Protective Measures, Article 54
The prosecutor's office and the court shall protect the following witnesses:
- A witness or a relative of a witness whose security is at risk due to threat, menace or any other similar action.
- A witness that has suffered serious physical or psychological trauma as a result of the crime.
- A witness who suffers from serious psychological conditions.
- A child witness.
- The security forces are required to protect the witnesses mentioned in the above paragraphs based on permission of prosecution office and court until the removal of danger.
Application for Protective Measures for Witnesses, Article 55
(1) The witnesses set forth in article 54 of this law may request protective measures to be taken during the investigation and trial process from the prosecutor's office and the court respectively.
(2) The application shall be submitted to the prosecution office and court in a sealed envelope. Both the prosecutor's office and court shall review the application and make a decision in their relevant areas. Disclosure of this information to others is forbidden.
Source: UNODC Sherloc
Protection of Witnesses and Whistleblowers of Criminal Offences Proclamation No.699/2010
4. Types of Protection Measures
1.The following protection measures may be employed for a protected person separately or in combination, as the case may be:
a) physical protection of person and property;
b) providing a secure residence including relocation;
c) concealing identity and ownership;
d) change of identity;
e) provision of self-defense weapon;
f) immunity from prosecution for an offence for which he renders information;
g) prohibiting an accused person from reaching the protected person’s residence, work place or school before or after a final judgment is delivered on the crime for which information is given;
h) not to disclose the identity of a witness until the trial process begins and the witness testifies;
i) hearing testimony in camera;
j) hearing testimony behind screen or by disguising identity;
k) producing evidence by electronic devices or any other method;
l) unless it is deemed confidential, providing information regarding the progress of investigation on what has been whistle blown and advice to a whistleblower;
m) providing transport allowance and per diem to a witness summoned to testify;
n) covering relocation cost where the protection measure entails relocation;
o) suspension or revocation of retaliatory administrative measures or taking any other compensatory measure;
p) provision of medical treatment free of charge at government hospitals in case of injury sustained as a result of retaliatory measure;
q) covering costs of basic needs in case of incapacity to work as a result of retaliatory measure;
r) in case of death as a result of retaliatory measure, covering funeral expenses and provision of pecuniary subsidy to family;
s) assisting the protected person to secure job and education opportunity;
t) providing or causing the provision of counseling service to the witness or whistleblower.
2. Notwithstanding the provisions of subarticle (1) of this Article, a protected person may not be issued with professional certificate that he does not rightly possess for the sake of protection.
Kazakhstan: Criminal Procedure Code
Article 372. Disclosure of testimony of the victim and witness
1) Disclosure in the court session of testimony of the victim and the witness, given by them in pre-trial proceedings or the prior proceedings, as well as video recording and filming of their interrogation is allowed in accordance with the procedure provided for in Article 377 of this Code:
- when there are significant inconsistencies between the testimony and the testimony, given by them in court;
- in the absence at the court session of the victim or witness for reasons, excluding the possibility of their appearance before the trial;
- when depositing testimony by the investigating judge.
2) Playback of a sound recording of testimony of the victim and witness, video and filming of their interrogation can take place according to the rules, set out in the second part of Article 368 of this Code.
Source: UNODC Sherloc
Witness Protection Act 11 of 2017
WITNESS PROTECTION MEASURES
Change of identity
47. (1) In this section and section 48(2), “registrar” means the chief registrar as defined in section 1 of the Birth, Marriages and Deaths Act, 1963 (Act No. 81 of 1963), and any registrar or assistant registrar as defined in section 1 of that Act, who has been designated by the chief registrar to perform any function in terms of this Act. [The correct citation for the Birth, Marriages and Deaths Act, 1963 is “Act No. 81 of 1963”.]
(2) A registrar may not prepare documentation relating to the establishment of a new identity for a protected person or perform any function in terms of this Act unless that registrar has been issued with a security clearance certificate.
(3) The Director may, with the approval of the Minister and subject to section 48, establish a new identity for a protected person.
(4) If the Director is requested by a protected person to establish a new identity for that protected person and the Director decides not to establish a new identity as requested, the Director must take reasonable steps to notify the protected person in writing of the decision. Republic of Namibia 36 Annotated Statutes Witness Protection Act 10 of 2017.
(5) Where a decision has been taken to establish a new identity for a protected person after the person has been admitted to the Programme, the Director must prepare a new protection agreement which must be entered into by the protected person and the Director before the new identity is created.
(6) If the protected person is a minor or otherwise lacks legal capacity to sign the agreement, it must be entered into in the manner as provided for in section 38(2) and if the protected person remains a protected person on or after attaining majority age or having legal capacity, as the case may be, the Director may require the protected person to enter into another agreement at that time.
(7) Despite the provisions of any other law, where approval has been given to establish a new identity for a protected person -
(a) the Director must notify the relevant registrar giving particulars of the new identity to be established and the documents that must be issued; and
(b) on receiving such notification, the registrar must take such steps as are necessary to issue those documents to the Director.
(8) A protected person for whom a new identity is being established must, on request, attend before the registrar and sign such documents or records or take such other steps as may be necessary to facilitate the establishment of the new identity.
(9) A document issued under the authority of this section must be considered to have been lawfully issued by the relevant registrar in accordance with the requirements of the law relating to the registration of births, marriages and deaths.
Source: Legal Assistance Centre-Namibia
New Zealand: Evidence Act 2006
Article 106 Video record evidence
(1) Without limiting section 105(1)(a)(iii), in a criminal proceeding, the video record evidence of a witness that is to be offered as an alternative way of giving evidence at the trial must, if a video record of that witness's evidence was filed as a formal statement under the Criminal Procedure Act 2011 or the witness gave oral evidence by way of a video record in accordance with an oral evidence order made under that Act, include that video record.
(2) A video record offered by the prosecution as an alternative way of giving evidence must be recorded and dealt with in compliance with any regulations made under this Act.
(3) A video record that is to be offered by the prosecution as an alternative way of giving evidence must be offered for viewing by a defendant or his or her lawyer before it is offered in evidence (including prior to any pre-trial consideration of admissibility), unless the Judge directs otherwise.
(4) A copy of a video record that is to be offered by the prosecution as an alternative way of giving evidence must be given to a defendant's lawyer unless subsection (4A) applies, or, if subsection (4A) does not apply, the Judge directs otherwise.
(4A) Subject to subsections (4B) and (4C), a defendant's lawyer is not entitled to be given a copy of a video record under subsection (4) of-
(a) any child complainant; or
(b) any witness (including an adult complainant) in a sexual case or a violent case.
(4B) On the application of a defendant, a Judge may order that a copy of a video record or a part of a video record to which subsection (4A) applies be given to the defendant's lawyer before it is offered in evidence.
(4C) When considering an application under subsection (4B), the Judge must have regard to-
(a) whether the interests of justice require departure from the usual procedure under subsection (4A) in the particular case; and
(b) the nature of the evidence contained on the video record; and
(c) the ability of the defendant or his or her lawyer to view the video record under subsection (3) and to otherwise access the content of the video record, including by way of a transcript of the video record.
(5) All parties must be given the opportunity to make submissions about the admissibility of all or any part of a video record that is to be offered as an alternative way of giving evidence.
(6) If the defendant indicates he or she wishes to object to the admissibility of all or any part of a video record that is to be offered as an alternative way of giving evidence, that video record must be viewed by the Judge.
(7) The Judge may order to be excised from a video record offered as evidence any material that, if the evidence were given in the ordinary way, would or could be excluded in accordance with this Act.
(8) The Judge may admit a video record that is recorded and offered as evidence substantially in accordance with the terms of any direction under this subpart and the terms of regulations referred to in subsection (2), despite a failure to observe strictly all of those terms.
(9) To avoid doubt, subsections (3) to (4C) do not apply to any lawyer representing the Crown who may be given a copy of a video record (which may or may not be offered as an alternative way of giving evidence) at any time for the purpose of providing legal advice to the Police before a charging document is filed and for conducting the prosecution once proceedings have commenced.
Source: New Zealand Legislation
Pakistan: Control of Narcotic Substances Act No. XXV of 1997
Article 46. Establishment of Special Courts
(1) The Federal Government and, if so directed by the Federal Government, the Provincial Government shall, by notification in the official Gazette, establish as many Special Courts as it considers necessary and appoint a Judge for each of such Courts and where it establishes more than one Special Courts,. it shall specify in the notification the place of sitting of each Special Court and the territorial limits within which it shall exercise jurisdiction under this Act.
(2) There shall be two classes of Special Courts to try offences under this Act, namely: (i) Special Courts having the power to try all offences; and (ii) Special Courts having the power to try offences punishable with imprisonment for two years or less.
(3) No person shall be appointed a Judge of a Special Court referred to - (i) in sub-section (2)(i) unless he is or has been a Sessions Judge or an Additional Sessions Judge ; and (ii) in sub-section (2)(ii) unless he is a Judicial Magistrate of the First Class.
(4) A person shall be appointed as Judge of a Special Court after consultation with the Chief Justice of the High Court of the Province in which the Special Court is established.
(5) The Federal Government or the Provincial Government may, in consultation with the Chief Justice of the High Court, confer the powers of a Special Court referred to- (i) in sub-section (2)(i), on any Sessions Judge or Additional Sessions Judge; and (ii) in sub-section (2)(ii), on any Judicial Magistrate of the First Class.
Source: UNODC Sherloc
28 U.S. Code § 1783 - Subpoena of person in foreign country
(a) A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.
(b) The subpoena shall designate the time and place for the appearance or for the production of the document or other thing. Service of the subpoena and any order to show cause, rule, judgment, or decree authorized by this section or by section 1784 of this title shall be effected in accordance with the provisions of the Federal Rules of Civil Procedure relating to service of process on a person in a foreign country. The person serving the subpoena shall tender to the person to whom the subpoena is addressed his estimated necessary travel and attendance expenses, the amount of which shall be determined by the court and stated in the order directing the issuance of the subpoena.
Source: Cornell Law School
Federal Rules of Evidence (2015)
Rule 608. A Witness's Character for Truthfulness or Untruthfulness
(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness's character for truthfulness.
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Rule 703. Bases of an Expert's Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Source: Federal Rules of Evidence