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While every country in the world adopted a set of laws and rules that govern the functioning of this country’s society, the specific designs of these systems can be strikingly different. One such example is the legal systems used in Saudi Arabia and the United States of America – the latter being a secular society, and the former basing its laws on Sharia, the religious law derived from the Qur’an. The purpose of the present paper is to explore and evaluate the differences between the two systems by examining the practice of witness confrontation during criminal justice trials.
Overview of the Legal Systems
The Saudi Arabian legal system is built on Sharia law, the basic Islamic law originating from the Qur’an and the Sunnah of the prophet Muhammad. In particular, the current legal system is based on the Hanbali school of Sunni Islam, as the primary source of guidance for the judges, and it was implemented by King Abd al Aziz in the 1920s. Unlike in other Muslim countries, Sharia has not been codified in Saudi Arabia, meaning that there are no written legal texts outlining the Sharia principles. Since Sharia can be argued to be somewhat open to interpretation, the lack of codification has caused significant uncertainty regarding the laws of Saudi Arabia. However, the judges may also rely on Islamic scholarly work as a source of Sharia, as long as there exists a consensus among the scholars.1
Modern phenomena such as corporate law and intellectual property are covered by royal decree regulations that supplement Sharia. Apart from that, however, Sharia is still the primary legal source and the Qur’an and Sunnah are considered to be the constitution of Saudi Arabia. The reason why Sharia can serve as a source of law independently from government texts is that it is quite extensive in scope and nature. It covers criminal, family, contractual, and commercial affairs, and it provides precise definitions of crimes ranging from fornication to homicide and highway robbery, as well as specific penalties for all of these crimes.2
While the Saudi Arabian legal system is defined by its religious nature, the United States system can be best characterized by its extensive bureaucracy. The legal system of the United States is based on several codified and uncodified legal texts, and the primary law of the country is the United States Constitution, which outlines the main governing principles. However, legal texts are not the only source of law in the country, since they also inherited the British common law tradition. The judges do not only apply the law but also make it by offering different interpretations of the existing provisions, thus setting a precedent for future rulings. As far as the “living law” of the society is concerned, it is primarily defined by the state, rather than the federal, legislation.3
The primary implication of these differences between the American and Saudi Arabian legal systems is what sources need to be examined to explore certain trial issues, such as witness confrontation. In the case of Saudi Arabia, the primary document is the Law of Procedure Before Shari’ah Courts, implemented in 2000, as well as the supplementary Law of Criminal Procedure. In the United States, however, the issue of witness confrontation can be best understood through the examination of different court cases.
Confrontation of Witnesses in Trial in the US System
The United States employs an adversarial legal system, meaning that two opposing parties present their point of view in front of an impartial judge in court. As such, adversarial legal systems place significant emphasis on the parties’ ability to test and question the other side’s evidence, including the witness testimony. This importance is recognized by both state and national constitutions that contain several provisions on witness cross-examination, or confrontation.4 The main source of law is the Sixth Amendment to the United States Constitution that states that “in all criminal prosecutions, the accused shall enjoy the right […] to be confronted with the witnesses against him.”5
Among the issues relevant to the question of witness confrontation is the ability of all parties to observe the presence and demeanor of the witness. The Confrontation Clause found in the Sixth Amendment indicates that face-to-face confrontation is the preferable method of questioning the witness. Four elements – presence, demeanor, oath, and cross-examination – are intended to ensure the reliability of the witness testimony. However, in certain cases, the court may allow the implementation of certain unorthodox procedures, such as, for instance, in the Maryland v. Craig case where a child witness was able to testify in front of a one-way monitor to avoid seeing the defendant.6 The court found that such conduct sufficiently satisfied the four elements designed to ensure the testimony’s reliability.
A similar issue was brought up in the Romero v. State case when a witness was afraid to appear before the court because of their fear of the defendant.7 The latter was indicted for aggravated assault which was carried out with particular violence, making the witness afraid of the possible retaliation the defendant may bring upon those testifying against him. However, since the witness was one of the State’s key witnesses, he was threatened with a $500 fine if he failed to appear before the court since he had received a subpoena. The witness then decided to enter the courtroom in a “disguise” after he had put on some sunglasses, pulled down his baseball cap, and turned up the collar of his jacket so as to obscure his face and make it unrecognizable. Even though the appellant objected to such disguise, the court overruled such objections, and the defendant brought the issue to the attention of Court of Appeals. The court awarded the defendant with a new trial because two elements of the Confrontation Clause were compromised: that of presence and demeanor. Thus, the court upheld that for a confrontation not to violate the right of the defendant, it must sufficiently satisfy the four criteria.
The second relevant issue regarding the process of witness confrontation in the United States legal system refers to the testimony of unavailable witnesses that were made out of court. Typically, the law will allow the admission of statements made by unavailable witnesses at trial through the hearsay rule. At the same time, such cases may undermine the defendant’s ability to confront the witness, as guaranteed by the Sixth Amendment.8 To understand how the hearsay principle applies in the U.S. judicial system, it is vital to consider the Michael Crawford v. Washington case.9 The case concerned the testimony given by one of the spouses against another. Mr. Crawford, having stabbed another man, claimed that he did so for the purposes of self-defense; however, during a separate interrogation by the police, his wife stated that the victim did no hold any weapons during the attack, meaning that her husband could not invoke the self-defense principle. The Washington state’s spousal privileges allowed Mrs. Crawford not to testify against her husband, yet the court held that the statement was admissible. Mr. Crawford appealed his conviction on the claim that the trial proceedings undermined the right of cross-examination granted to him by the Confrontation Clause since he could not cross-examine his wife without waiving his spousal privilege.
The significance of this case lies in the fact that it warranted a review of the previously accepted trial practices. The courts in the state of Washington relied on the Ohio v. Roberts case which permitted the use of unavailable witnesses’ statements in court as long as the statement bears a considerable degree of reliability and trustworthiness.10 However, the invocation of this principle resulted in an inconsistent and somewhat arbitrary application of the Confrontation Clause so that the United States Supreme Court found a revision of the principle to be necessary. The Court provided a thorough historical examination of the Confrontation Clause. According to the ruling, a prior opportunity for cross-examination needs to have existed, regardless of the fact that the witness is unavailable to testify in court. This issue concerns testimonial statements or those official declarations that are made in front of law enforcement officers. According to the Court, “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” Effectively, this decision reinforces the need for the witness to appear to testify against the accused in court.
Finally, the last issue to be discussed is that of out-of-court statements made by one of the defendants during a joint trial. The problem arises when such a statement implicates the other defendant who should, in theory, be able to confront the witness. However, given that the other party is also a defendant in joint cases, the witness can invoke the self-incrimination privilege, making it practically impossible for the accused to confront such a witness.11 This kind of issue arose during the Commonwealth v. Bacigalupo case when one of the defendants referred to his “friend” during his confession, thus indirectly implicating the other defendant since the court could make a logical connection between the two.12 Typically, the judges followed the so-called Bruton rule that originated from the landmark Bruton v. United States case.13 The rule stated that a co-defendant’s confession implicating the other defendant’s involvement in the crime violates the defendant’s civil rights, as provided in the Confrontation Clause. Notably, even though in Commonwealth v. Bacigalupo the co-defendant did not state the name of his “friend,” the court found that the indication that he provided was sufficient enough to mislead the jury. Such a confession can only be admissible if it is redacted in such a way so as to exclude any references to the fact of the defendant’s existence.
Thus, these cases highlight how the courts in the United States chose to interpret and apply the Confrontation Clause of the Sixth Amendment. Primarily, two trends can be observed: the defendants should have the opportunity to cross-examine the witness, as well as observe their presence and demeanor, even if the witness is unavailable at the time of the trial. Secondly, hearsay testimonies are treated with considerable skepticism and caution, and their admissibility in court is limited, apart from several notable exceptions.
Confrontation of Witnesses in Trial in Saudi Arabia System
The extent to which the confrontation of witnesses during a trial is defined in the Saudi Arabian legal system is far narrower than that in the United States. Legal precedents are not as common in the country, and the rules and standards of the confrontation can principally be derived from two primary legal sources: The Law of Procedure before Shari’ah Courts and The Law of Criminal Procedure that briefly outline the main principles of witness confrontation in Saudi Arabian courts.
Notably, The Law of Procedure before Shari’ah Courts, even though it contains a section on in-court testimony, offers little guidance as to how witness cross-examination and questioning should be executed.14 The document does not reserve the right for the defendant to pose questions to the witness, and such a privilege largely remains at the discretion of the judge: “The judge on his own or at the request of a litigant may ask the witness whatever questions he determines are conducive to determining the truth.” Thus, the court may dismiss the defendant’s inquiry if it deems the question immaterial.15 Since the defendant’s right to confront the witness in court is not acknowledged in this law, unavailability of witnesses does not pose a legal issue in the Saudi Arabian legal system. However, it does not mean that hearsay testimony will be admissible if it is delivered by another person: rather, the court appoints one of its judges to hear the testimony outside of the court or, alternative, it deputizes the court at the witness’s place of residence to collect the testimony.16
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The trial proceedings in as outlined in The Law of Criminal Procedure are far more comprehensive in regard to the witness testimony.17 However, the term “confrontation” is still not used in the document, and the parties have the right only to cross-examine the witnesses, rather than confront them. The distinction is significant because confrontation as a term is broader than cross-examination. At the same time, the court still maintains a considerable degree of authority in deciding whether to satisfy the litigant’s request to review the evidence and testimony, if the court finds that such a request is “intended for delay, malice, or deception, or that granting such a request is not probative.”18 Apart from that, witness cross-examination is reserved for those cases when the court finds it necessary to interrogate the accused if they deny the offense or refuse to respond.19 The primary explanation for this practice lies in the fact that Saudi Arabian courts deem only certain kinds of witnesses reliable: to offer their testimony a witness must be an adult Muslim male “of good character.”20 Such a selection of witnesses implies that they will always tell the truth in front of the Sharia court, and cross-examination thus loses its relevance to a considerable degree.
Since the legal tradition of the Saudi Arabian system offers little information regarding the issue of witness confrontation, it is imperative to turn to scholarly sources detailing this practice. The results of such a literature analysis allow observing several important trends and common practices used in the Saudi Arabian system. Thus, for instance, it is revealed that the courts in Saudi Arabia generally tend to treat hearsay testimonies with significant skepticism, and typically, a witness may not testify on the matters they did not personally witness. However, as mentioned before, there are certain exceptions to this rule. Namely, a deputized representative of the legal system may present the testimony of an unavailable witness in court, and such statements are generally fully admissible. Apart from that, the court allows the presentation of public record matters such as marriages and births, “notorious facts,” and testimonies of dead or missing witnesses.21
The legal system in Saudi Arabia generally places stricter requirements on witness testimonies. First of all, the Qur’an requires the witnesses always to come forward to testify about crime, and any delay in doing so will cast a shadow on the veracity of the statements made by the witness. Apart from that, as mentioned previously, there are certain requirements for a person to qualify as a witness: those of gender, age, religion, and character. In regard to the latter characteristic, local courts keep records about the local citizens’ “conduct and habits” to determine their trustworthiness, if necessary.22 The significance of these provisions lies in the fact that they presuppose some of the conditions of witness confrontation. The Sharia law assumes that if a witness comes forward, their testimony will be accurate, and in certain cases, the quality is ensured by a larger quantity. For instance, in adultery cases, four people have to testify that they saw the act for their testimony to be valid.23 Finally, the accused has the right to be present at trial and view the witnesses. However, cross-examination is practically difficult as the accused needs to produce two other witnesses if they attack the testimony against them. However, in practice, the judge will frequently deny cross-examination or will pose the questions themselves.24
Comparison of the Systems
Given the differences between the Saudi Arabian and American legal systems, as evidenced by their approaches to witness confrontation, one can say that the U.S. system has a better design. In certain aspects, the Anglo-American and Islamic systems have some similarities: for instance, their strict stance on hearsay testimonies.25 However, apart from this similarity, the two systems are notably different, and the American approach allows better civil protection of the accused.
The fundamental flaw of the Saudi Arabian system is its assumption that all witnesses, when they appear in court, tell the truth, and thus, there is no need to cross-examine them. First of all, one can argue whether the witness requirements satisfy the criteria for deeming their testimony automatically reliable. Moreover, the nature of testimonies, even if they are based on eyewitness accounts, is such that it a witness does not necessarily have bad intentions when they make a statement against the accused. Even sensory perceptions can be misleading, and an opportunity to cross-examine a witness allows the defendant to identify any flaws or biases of the testimony, even if the witness is certain they are telling the truth.
Thus, the advantage of the American system is that it guarantees better legal protection for the accused. Its design is comprehensive and includes several different scenarios: for instance, the defendant has the right not only to hear the testimony but also observe the demeanor of the witness. As documented in the relevant literature, one’s behavior may reveal significant insights regarding the veracity of this person’s statements. Thus, by allowing the defendant to observe and question different elements of a witness testimony, the American legal system offers better protection of the defendants’ civil rights.
Witness confrontation is an important legal practice because it allows ensuring that no testimony against a person goes unquestioned, just like any other piece of evidence presented during a trial. There are several ways in which this right can be compromised, and a legal system should be designed in such a way as to address these deficiencies.
Essentially, it is difficult to compare the practice of witness confrontation in such strikingly different systems as those of Saudi Arabia and the United States. These differences do not necessarily result from the intentions of policy-makers to limit or otherwise compromise the civil rights of the accused. Rather, any differences stem from the fundamental assumptions of each of these systems. The United States legal system is based on secular principles while the one in Saudi Arabia is closely linked to Islam and its laws. Thus, such elements as witness confrontation are essentially embedded in the very design of the system.
As far as the internal validity of the Saudi Arabian and American systems is concerned, each one of them can be said to be internally consistent with its design and its underlying principles. Evaluating and comparing different practices within the systems requires an understanding and analysis of their primary assumptions and beliefs. Thus, for instance, the Saudi Arabian system is based on the principle that witnesses make truthful testimonies. However, practice suggests that this is frequently not the case, and false statements are common across all cultures, and no society is safe from such individuals. Given such an understanding of the problem, one can claim that the American system, by providing additional mechanisms to test the validity of witness testimonies, has a better design of the witness confrontation practice.
- Frank E. Vogel, Islamic Law, and Legal System: Studies of Saudi Arabia (2000).
- William Burnham, Introduction to the Law and Legal System of the United States (2011).
- Marc L. Miller & Ronald F. Wright, Criminal Procedures: Prosecution and Adjudication: Cases, Statutes, and Executive Materials 547 (5th ed. 2015).
- U.S. Const. amend. VI, § 6.
- Maryland v. Craig, 497 U.S. 836 (1990).
- Romero v. State, 173 S.W.3d 502 (Tex. 2005).
- Miller & Wright, supra note 4, at 561.
- Crawford v. Washington, 541 U.S. 36 (2004).
- Ohio v. Roberts, 448 U.S. 56 (1980).
- Miller & Wright, supra note 4, at 570.
- Commonwealth v. Bacigalupo, 918 N.E.2d 51 (Mass. 2009).
- Bruton v. United States, 391 U.S. 123 (1968).
- Royal Decree No. (M/21), August 19, 2000, Umm al-Qura [The Law of Procedure before Shari’ah Courts], ch. V.
- Id. art. 121.
- Id. art. 118.
- Royal Decree No. (M/39), October 16, 2001, The Law of Criminal Procedure, ch. 6.
- Id. art. 164.
- Id. art. 163.
- Jeffrey K. Walker, The Rights of the Accused in Saudi Criminal Procedure, 15 Loy. L.A. Int’l & Comp. L. Rev. 879 (1993).
- Walker, supra note 20, at 876.
- Id., at 878.
- Id., at 879.
- Id., at 879.
- Id., at 876.