9.3 Setting Standards for Judicial Powers

The truth can only be properly brought to light if the judge takes an active role and makes room in the procedure for fact-finding Such an active approach will in part depend on the methods of each individual judge when procedural law presents them, as is so often the case, with choices in concrete cases. The law offers ample tools for a judge to take an active role in finding the truth, but it is up to individual judges to use them.

Jurisprudence can be an important guide for the judge in that regard. For example, jurisprudence resulted in the rule that a judge is required to accept a relevant and concrete offer to provide evidence from witnesses, a rule which is very important to the way in which a judge makes use of their authority to hear witnesses. This rule sets a standard for a judicial power; it can be assumed that without this rule, judges would hear (even) fewer witnesses than they do now.1 This makes this rule indispensable for finding the truth. Because finding the truth is not the only interest at stake in a procedure, and because those various interests can be at odds with each other, judges need standardised powers rather than discretionary powers.

A comparable standard should be set for the judicial powers of allowing documentary evidence and for gathering expert testimony. Not only to further finding the truth, but because those give the judge a guideline for procedural decisions as well. Furthermore, standardised powers increase the predictability of judicial decisions.

In the case of documentary evidence, using the same standard as allowing witness testimony is an obvious choice: when a party offers to enter documentary evidence into the proceedings and the offer is both concrete and relevant, the judge should honour it.

The following standard was suggested for expert testimony:

Using that standard should make it less noncommittal and less subject to their personal and individual judgement for judges to gather expert testimony.

A standardised power would be quite useful in ruling on evidence as well. The law does not provide a standard for assessing evidence and gives free rein to the judge in deciding whether or not a party was successful in providing its evidence. This makes ruling on evidence a rather subjective matter, depending on the personal opinions of judges and unfathomable for parties. Setting a standard for evidentiary decisions makes them more widely applicable, and allows those decisions to rise above a mere personal opinion of an individual judge. Decisions regarding evidence can be more thoroughly motivated, which benefits their clarity and quality. This book therefore presents a proposal for a more intersubjective standard for assessing evidence:

This standard benefits finding the truth, especially because it makes discussing whether or not stated facts are proven easier.

Following from this proposal for a standard for evaluating evidence, criteria were drafted which judges can use when evaluating witness and expert testimony. The criteria which a judge can use when evaluating evidence are relevance, consistency, quality, and coherence. These benchmarks provide a foundation for judges to base their evaluation of the evidence on, and enable more insight into the decision process when evaluating evidence.

A modern standard for evaluating evidence should leave no room for the personal beliefs of a judge, in the same way that the criteria for evaluating evidence should leave no room for the benchmark of believability. These are vague concepts, which can either be translated into the proposed standard or benchmarks without adding anything substantive, or are subjective to such an extent that they cannot form a proper basis for useful arguments in a judicial ruling on the evidence.

Standardising judicial powers or offering viewpoints which the judge can use to come to a decision have long since become commonplace in material law. This dissertation showed that procedural law also requires standardisation of judicial powers.