The right to disclosure provides another example of

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and exercise his other rights. The right to disclosure provides another example of the proliferation of implied rights that are the product of interpretation of basic and general norms. The judicial and legislative creation of disclosure rights underlines the dynamic
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4 nature of such rights and the possibility of contraction of rights and the assertion of new and competing rights (Devins & Fischer). To the extent that both civil and common law jurisdictions have embraced the right to disclosure as a fundamental one, there has been convergence among these two types of jurisdictions at an important level. But the way this abstract concept has been adopted has reproduced preexisting differences between these jurisdictions and created new ones. Different expressions have been used to refer to disclosure rights that reflect different conceptions of it. While in civil law jurisdictions it has been defined as the right to access the file (as reflected by expressions such as the droit de consulter le dossier in French, Akteneinsichtsrecht in German, derecho a examinar el expediente in Spanish), in common law jurisdictions the right has been defined as the right to disclosure or discovery of an open-ended list of items, typically possessed by the prosecutor but also at times possessed by the police and other agencies. The reference to the dossier in the civil law formulation is not coincidental given the central role that the dossier has played in an administration of justice conceived as a Weberian bureaucracy run by impartial legal professionals. In such a conception, investigating officials are supposed to document all their procedural activity—including the gathering of elements of proof. And even if many civil law countries have established public and oral trials, the written dossier still has an important weight in adjudication. First, certain elements of proof collected in the written dossier during the police and pretrial phases—including statements—can be treated as evidence in many civil law jurisdictions (Maffei; Summers). In addition, the written dossier is read at least by one of the members of the trial court before trial—which can create preconceptions about the case—and is used by the court to decide which evidence should be actually presented at trial and in which order, and to interrogate witnesses and expert witnesses at trial. In contrast, in common law jurisdictions, the right to disclosure does not make a reference to any privileged locus. The historical centrality of the trial by jury as the crucial adjudicatory moment in the criminal process de-emphasized the importance of the pretrial phase and contributed to keeping it relatively informal and flexible. As a consequence, police and prosecution do not need to document all their procedural activity. This means that even a prosecution office with an open file policy toward the defence may not fully discharge its disclosure duties because there may be information and elements of proof that have been identified in the investigation by public authorities that have not been included in the prosecutorial file.
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