RB 54

135 Inger’s studies, compared to my own, show that the significant steps towards the abolition of the legal rules of proof were taken almost simultaneously in the legal practice of both countries. The Early Start: The Debate Commences in the 1820s In the first half of the nineteenth century, several influential statutory proposals announced the coming of a modern liberal age. Already in proposals for a Civil Procedural Code in 1822 and for a Criminal Procedural Code in 1832, jury-like arrangements were proposed for certain types of cases. In these proposals, the law commission assumes a curious, although reserved attitude towards the actual trial jury.^ In a proposal for a Civil Code in 1826, the drafters took a clear stand in favor of the free evaluation of proof.As one of the alternatives, the drafters of a proposal for a Procedural Code in 1849 were willing to substitute the free evaluation of evidence and a trial jury (in serious criminal cases) for the legal theory of proof.^ Following the latter proposal, there was a genuine attempt to rid the Swedish process of the legal theory of proof and of confessional imprisonment. This undertaking, however, was rejected by conservatives. For example, Flundred Court Judge Adolph Ludvig Strussefelt based his rejection of the free theory of proof on the need to guarantee the accused’s legal security. Confessional imprisonment, then, was necessary to secure public security.^ Among the members of the law-drafting committee was Johan Gabriel Richert, an influential liberal and a jurist well acquainted with the continental legal systems.^ The proposals have been said to have been too far ahead of their time, and they certainly met with harsh criticism. For C. O. Delidén, one of the most important tasks that a trial could be assigned was the prevention of all subjectivity; therefore, legal rules of proof continued to be necessary - even in a jury system. Even Delidén, however, emphasizes the judge’s responsibility to positively evaluate the contents of each witness statement.^ The judge, then, had to be subjectively convinced of the accused’s guilt. In the scholarly writing, there were writers who were clearly in favor of liberal procedural principles. J. C. Lindblad represents a mediating stance when, after explaining the history of the law of proof at length, he claims that: “Through this presentation of the history of legal theories of proof, it ought to remain quite clear that the law-giver must give up all attempts, with the help of ^ See Sjöholm 1972 pp. 94—95. ■* Inger 1994 p. 233. ^ Sjöholm 1972 p. 97; Inger 1994 p. 243. Inger 1976 (b) pp. 71-73. ^ Ibtd. pp. 71—73, 216. « Delldcn 1832-33 p. 222. 10

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