193 Empirically, I have tried to show above that the choice of appropriate decision type was largely a matter of free evaluation of evidence. There were no clear-cut boundaries between acquittal and conditional acquittal, conditional acquittal and absolutio ab instantia, absolutio ab instantia and confessional imprisonment, and not always even between confessional imprisonment and a conviction. To be sure, written law did operate with evidentiary rules, such as half a proof, more than half a proof, and almost proven guilty. What it failed to offer, however, was a comprehensive set of rules as to how and by what pieces of evidence each category of proof could be constituted. For example, there were no clear rules as to what pieces of evidence could amount to “more than half a proof.” Thus, it was largely a matter of free evaluation to decide into what category of evidential result a certain amount of proof fell. As soon as this decision had been reached, the category chosen led automatically to the corresponding category of decision. Even during the era of legal proof, the legal practice left considerable room for the courts’ own evaluation. A conviction could be arrived at even on the basis of circumstantial evidence alone, and the determinations of categories followed fewor no pre-established rules. Besides the middle categories of decision, another way of evading the practical obstacle that the strict rules of legal proof posed to efficient penal control was a loose interpretation of the central categories of legal full proof. Confession, “the queen of proof,” did not necessarily have to cover all elements of the criminal deed. If a confession was recanted, if it was combined with a legal defence such as self-defence, or if a confession was limited to part of the charge only, the burden of proof rested on the accused as to the circumstances under which the confession was cancelled or qualified. Furthermore, in many cases extrajudicial confession seemto have played an important role. As to the witness statements, the other central category of full proof, similar laxness prevailed. Basically, the witness statements had to concur as to their most important elements, but in practice, this requirement was understood quite loosely. Similarly, although both witness-statements, according to the law, had to be given under oath, often statements by under-aged or other witnesses not qualified for oath were given weight. The limited material that I have gathered from lower court practice supports the conclusion that the legal theory of proof was basically followed in the lower courts as well and even more rigorously than in the cases of homicidal crime. Above, I have suggested that the lower courts had assumed a point of viewof practical penal control: feeling the need to “do something” about serious criminality, they were more eager to depart fromthe statutory requisite of proof than was the case for lesser crime. The only instrument for themto use was conviction; therefore, it had to be used even in the absence of full statutory proof.
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