Challenging a police report: an error does not automatically exclude evidence

Which official report is disputed?

A criminal file contains various official reports: findings, statements, investigative actions and reports of hearings. They do not all have the same origin and function. Start with title, date, author and page number. Is it the officer's own observation, a statement from a witness or a summary of digital material? A point of criticism can only be assessed specifically when it is clear which source actually claims something. The general term police report is often too imprecise for this.

Also check that you have the full text and attachments. A passage on one page can refer to a recording, photo or other document. The police describe requesting court documents; the lawyer must monitor the appropriate criminal prosecution route. A missing piece does not make your criticism unimportant, but it can explain why a conclusion is not yet justified. First ask what exactly the report records and what it is based on, before claiming that an entire event has been fabricated. (police describe requesting case documents)

A difference can be factual, incomplete or interpretive

An incorrect house number can be an administrative error. A wrong date can affect the timeline. A passage of someone running can be a disputed observation, while the same movement is explained differently on screen. These categories must remain separate. Write down for each point what you think is incorrect and what type of correction is requested. This makes it clear whether it concerns an objectively verifiable fact or a difference of interpretation of the same event.

Incompleteness again asks its own question. Perhaps a relevant follow-up sentence is not included in the summary, even though the included sentence is literally incorrect. The meaning can therefore change. Therefore, explain what is missing and why it is important for the accusation. A log with many small spelling errors can obscure a significant substantive problem. Start with passages that really touch on the accusation, reliability, timeline or exercise of legal rights. Details can be added later without crowding out the gist.

What you said and what you meant by it are separate data

In a report of your own interrogation, the discussion may concern the words displayed, but also the context in which you said them. Have you declared something certain or mentioned it as a possibility? Was an answer to another question involved? Your own explanation afterwards is relevant, but does not automatically change the previous registration. Compare the text with your actual memory and possible recording. Make a note of where you are no longer sure. A precisely defined correction is more reliable than a completely rewritten statement afterwards.

The police explain that a suspect is not obliged to sign. However, the absence of a signature does not mean that a drawn up report automatically disappears. Conversely, a signature does not make substantive criticism impossible. Discuss with the lawyer how the statement came about, what changes were requested and what has been recorded about this. The concrete examination of words, understanding and circumstances is more important than the general expectation that one signature decides every subsequent evidentiary problem.

Use material that can really test the disputed passage

A camera recording, original chat, document or independent witness can help clarify an error. Link the countersource to exactly the same event and period. A photo from another day does not prove without explanation what the location looked like during the incident. A timestamp must be understood within the setting of the system used. Have the attorney secure and review the original materials as necessary. A self-edited compilation is usually less suitable as the sole basis of a factual defense.

Also record the limitations of the counter source. A camera may not show an angle, miss sound, or record only part of the event. A witness could not have seen the beginning. That doesn't mean the source is unusable; it prevents her from seeming to prove more than is possible. The defense does not become stronger by concealing such boundaries. A verifiable comparison shows what part of the passage is refuted, what part remains open, and where further investigation may be needed.

A summary can be compared to registration

The Public Prosecution Service instruction on interrogation registration describes that an official report is also made in the form of a summary during recording. A written representation is therefore not necessarily a verbatim transcript. This does not explain every deviation, but it helps formulate the right question. Has a caveat important to the evidence disappeared? Is an answer without the corresponding question included? Is something that the interrogator mentioned as the suspect's own communication? Such differences can be specifically investigated. (OM instruction on interrogation registration)

Ask the lawyer for appropriate information and, if necessary, joinder or further recording. A recording is not automatically a freely accessible file that anyone can download. The procedural route and relevant interests remain. Therefore, indicate which passage or period should be examined and why. A specific request to compare ten relevant minutes can provide more direction than the unfocused complaint that the entire conversation felt different. The lawyer must be able to assess whether broader context is also necessary to honestly understand the difference.

Unreliable evidence is a different question than unlawfully obtained evidence

A substantively unreliable observation may lead to a judge not using it as evidence. That is not simply the same assessment as exclusion of evidence due to a procedural error during investigation. In HR 1 December 2020, ECLI:NL:HR:2020:1889, the Supreme Court made it clear, among other things, that substantial damage to reliability and accuracy is an inherent reason for not using research results. Article 359a is therefore not the answer to every point of criticism about a file document. (HR December 1, 2020, ECLI:NL:HR:2020:1889)

This distinction makes a defense more precise. Anyone who claims that a passage is factually incorrect must explain why the judge cannot rely on it or what correction is necessary. Those who argue that evidence was unlawfully obtained must discuss the standard, the actual violation and the relevant legal effect. Sometimes these topics overlap, but they should not automatically be equated. An attorney can choose the appropriate legal route after the factual criticism has been sorted out. The client mainly helps by providing concrete data and original sources.

A procedural error does not have a universal sanction

The aforementioned judgment clarifies the framework surrounding Article 359a of the Code of Criminal Procedure. The judge looks, among other things, at the importance of the regulation, the seriousness of the omission and the harm caused. Possible reactions vary; not every error leads to exclusion of evidence or inadmissibility by the Public Prosecution Service. In the specific case, only the sentence imposed was quashed and remanded, while a far-reaching admissibility defense did not achieve the same result. It is important not to present that outcome as a blanket cessation of prosecution. (article 359a Code of Criminal Procedure)

Therefore ask what result the defense is actually aiming for and why that fits the identified error. A correctable ambiguity may give rise to an additional report or interrogation. A serious reliability question may require a different response. The fact that the original document was drawn up under official oath does not prohibit criticism, but a general accusation of perjury poses a different and serious question. State facts before attributing intentions to the author. An error can be serious without it being established what caused it.

Fictional example: a point in time that touches another part

In a fictional example, a police report states that Noor was seen at a location at 9:15 p.m. An original recording appears to show the same passage at a different time. Noor first writes that the entire file is false. However, the lawyer investigates the clock setting, the original source and the remaining timeline. Perhaps only the time displayed is incorrect; perhaps the difference also changes the possibility that Noor was present at the alleged offense. The meaning of the error needs to be elaborated.

A targeted comparison therefore places the passage, the recording and the time source side by side. It is also investigated whether the reporting officer was present or provided information from a colleague. The example does not predict an acquittal. It shows why a correction only becomes legally useful when it is linked to a proof step. An error can go to the heart of the matter or require clarification. The defense does not have to choose in advance between everything is reliable and the whole case is invalid.

A log with location, countersource and meaning

Create a line for each point of criticism, with sufficient space for the lawyer's or drafter's answer. Save the original text next to a marked working draft. Don't just correct your copy and then distribute it as if it were the official court document. A log must make visible what the file says and what your dispute is. Use source references so that the point can easily be found later at a hearing or in a request.

• Item: title, date, author, page number and event involved.
• Passage: exact statement found to be incorrect, incomplete, or unclear.
• Type: factual error, difference of interpretation, missing context or standard question.
• Counter source: original data, origin, date and limitations.
• Meaning: which component, which timeline or which procedural law is affected?
• Investigation: additional documentation, recording, witness or expert question.
• Response: requested recovery or defense and answer within the criminal case.

A complaint and a criminal defense can run parallel

The police describe their own complaints route for police action. A complaint may be appropriate, but it does not replace discussing an incorrect report in the criminal case. Conversely, the criminal court does not automatically handle every broad complaint about the organization. Ask the lawyer which route serves which purpose and which procedure is urgent. A substantive hearing should not be left unprepared because a complaint is still awaited elsewhere.

Our conclusion: the best response to an incorrect official report is precise enough to be testable. A strong counter-source need not be surrounded by general accusations; a serious legal consequence requires its own motivation. Use the main criminal file guide for the documents and the explanation about calling witnesses when further hearings seem necessary. A careful error log makes visible what needs to be repaired, investigated or substantively combated, without promising an outcome. (criminal file main guide · Call witnesses)