Civil and Criminal law

All societies, even all groups, invent rules by which they channel the behaviour of their individual components. Behaviour is noticed by others, is witnessed, and it can therefore be commented upon and acted upon by others. In modern democracies social rules are also formulated in the judicial system of law. Civil law provides the rules that define how we interact as citizens. Criminal law defines how we deal with people who commit crime, who violate the rules that are given. In both civil and criminal law, presence, which is witnessed, is an important factor in establishing truth. Presence, unity of time, place and action is fundamental to how judicial process evolves. Presence is a factor in how an accusation is formulated, on how it is prosecuted or a disagreement is solved. Presence is a factor in what proof is accepted and what not. Presence and perception are intertwined. They will be checked and contextualized in a trial, because they have such crucial implications for how the judicial process evolves.

In most countries all evidence has to be presented in court, in front of the judge who has to be present because he/she has to be able to perceive all proof in person. This is also the case with the International Criminal Tribunal for the former Yugoslavia in The Hague. No mediation of proof is allowed. In some countries, like the Netherlands, the court will accept written statements, which are given in the presence of a trusted third party. Media, like videotapes, sound recordings, server information may be accepted as proof as well. Such proof has to be contextualized like any other witness report.

In civil law, as is agreed in many countries, we have to be present to fulfil certain legal actions. When we marry, when the will of a deceased person is read, when we buy a house, when we sign certain contracts, the people involved have to be present. Often a third trusted party has to be present as well, as a witness. The position of the notary in civil law is interesting in this respect. A large part of the notary's job is to be present and to testify about the presence of the others who are signing a document at a certain place (usually the notary's office) at a certain time. In civil law, this way of establishing contract and binding agreements is arranged as well. A signature is one of the most widely used mediators of our presence. My signature proves that I have seen the document at a certain time and place, which is often noted as well, and approved of it by registering my signature. A signature has value for a certain amount of time, at a certain place, in a certain context and has a pre-defined level of operation and execution of power. So the mediation of my presence by my signature is usually well defined in its operational capacity. A different point about witnessed presence in civil law is that not doing something can be considered as strong a deed as doing something. To be in a place at a certain time and not act can be judged as illegal. When one witnesses fraud for example, not interfering may make a person liable as well.

In criminal law, the unity of time, place and action has a different character than in civil law. Presence is a crucial factor in establishing whether a fact occurred or not. When I commit a crime, it becomes a deed the moment it is witnessed. Questions will be asked in court later like 'Was the accused present at the time and place of the crime and/or did his/her actions trigger the events? Is there another person who can testify that he/she was somewhere else? Do other witness reports and other supporting materials like traces support this, for example? And also, the reverse, being present at a place at the time a crime is committed, can make a person responsible for acting under certain circumstances. Being there and doing nothing can be as incriminating as being there and doing something. People witness each other's presence, testify about each other's presence and this influences the judicial process profoundly. It incriminates a person or sets a person free, depending on whether other evidence supports the witness reports.

New technologies, which change forensic investigation and evidence, are developing rapidly at the current time. In debates about the validity of this kind of evidence, the technical methodology, as well as the context in which it is applied and the analysis of the results to be found, is under debate. DNA analysis may identify that a particular person is the one who has left certain traces that prove he/she was present in a particular place. How the DNA analysis is done, as well as how the results are understood, can be called into question. Technologically obtained evidence also has to be contextualized since any researcher makes choices in an analysis and these choices define outcomes.

Here, I want to establish the fact that 'presence', which is witnessed, is a factor of vital importance in judicial systems. It is part of the negotiation through which people establish trust and truth. Whether, where and how this can be mediated, and whether this mediation is accepted is one of the issues that is constantly discussed by policy makers and judicial institutions.