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Many European judiciaries are based on the formal methods of the 1804 Napoleonic Code. As early police forces were often unreliable, the practice was to allow anyone to approach an examining magistrate and, on presentation of prima facie evidence alone, ask for an official investigation of supposed wrongdoing.
Provided the examining magistrate is satisfied there is substance to the allegations, the official criminal investigation services gather additional evidence under court supervision.
Differences between investigatory and trial courts
Unlike the fixed courtrooms used by criminal trial courts which usually operate in public and require proof beyond reasonable doubt, the examining magistrate's court is held in camera (secret until finally summarized), is less formal, may visit relevant scenes, ask questions of bystanders or investigators, and relocate where necessary. For example, examining magistrate's courts may function in hospitals, official offices, private premises or even open fields where a site is considered relevant to the acquisition or verification of evidence which may be admissible in the trial court on the basis being relevant merely on the balance of probability.
The purpose of the examining magistrate is to classify the whole body of evidence as it is acquired, to decide if it is admissible evidence, and to call witnesses, and request the appointment of a prosecutor (often called a fiscal). Witnesses may be of two categories:
- testimonial witnesses—not suspected of misconduct, and so not usually entitled to legal representation while presenting evidence before the court of the examining magistrate unless they suffer a very serious disability.
- imputed witnesses—always entitled to use the services of a criminal lawyer, since the investigating magistrates can and do demand unlimited securities of money and property, or may make an order of remand (detention).
Finally the case may be
- archived (in case further and better particulars become available). The imputed witnesses are presumed innocent and released from bail or remand.
- transferred for trial. The examining magistrate nominates a suitable regional, national or supreme court of first instance. Only at this point are imputed witnesses subject to formal criminal charges. Bail or remand orders remain in force.
One advantage of an examining magistrate evaluating the veracity of evidence is that it provides equality of arms since neither investigators nor defendants at trial can with-hold vital evidence with which to be economical with the truth nor or later produce crucial (but untested) allegations or new material with which to mount the sort of ambush litigation made famous by TV courtroom drama series.
Additionally, although the trial evidence verified by the examining magistrate is likely to be comprehensive and extensive, it also seeks to ensure that the trial process is thorough with neither a premature conclusion nor undue delay which might occur by the introduction of extraneous evidential material.
The main disadvantage is the length of time the process takes and the high cost, compared to the Anglo-Saxon prosecution procedure, and that, once concluded, any subsequent trial is likely to be long and complicated, although new material is difficult to introduce into the trial process.
Another problem is that, the investigating magistrate's court being held in private, there is apt to be much press speculation as to who said what as each witness is 'called' publicly - this is especially important in many major cases which are the result of investigative journalism. Merely filming arrivals and departures of high -profile witnesses can be construed as defamatory media bias to promote unfair public opinion resulting in trial by media.