RB 54

165 Two guiding threads run through the empirical study. First, I will be concerned about determining when courts began to depart fromthe requirement of confession or two eyewitnesses as full proof. For the study, therefore, the cases with less than full proof are the most interesting; the ones with full proof turn out to be of less informativevalue. This is so for the simple reason that the cases of the latter category — the majority of the cases — are so clear that conviction would have resulted by any theory of proof. It will thus be asked, when did the courts systematically begin to convict on the grounds of circumstantial evidence? And second, when did the so-called intermediary decision types fall into desuetude? These points are interconnected: when an evidentiary system no longer employs intermediary decision types, it may be presumed to have passed to the stage of the free evaluation of proof. 12. The Reign of Legal Proof in the Finnish Criminal Procedure Prior to the 1850s The special characteristics of the Swedish criminal procedure that I have described above (see Ch. 5) were typical of the Finnish nineteenth-century procedure as well. Unlike in continental procedure, no separate investigative phase existed in Finland. There was virtually no difference between civil and criminal procedure. Both types of cases were decided by the same lower courts. The lower court decisions concerning serious crimes, like homicide, continued to be automatically referred to the high courts. In the first half of the nineteenth century, the statutory theory of proof reigned in the Finnish lawof proof. According to the basic rules, a conviction required a confession or two eyewitnesses. As practical guides, these rules did not take the presiding judge and his lay nämndemän very far, however. How detailed a confession was necessarv for cc^nviction? Was it essential for the confession always to be given before the court? What kind of an effect did a withdrawal have on a confession’s validity? How identical did eyewitness statements have to be? Did eyewitnesses’ statements always need to be based on what they had concretely seen, or could their statements perhaps be grounded on what they had directly and personally heard? As we have seen above, the ins commune doctrine, together with Nehrman, had fairly uniform answers to these questions; the dominant Finnish legal practice was, however, not always very strict on some of these respects. We will sec that the Finnish legal theory of proof such as it stood before its collapse in the nineteenth century is not only an incoherent one, but also a profoundly unlearned one. Doctrinal works are never referred to, not even in the practice of the higher instances. The unlearnedness of the process is partly due to the corresponding characteristics of the Law of 1734. Moreover, besides

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