Unlawfully obtained evidence: what must a Dutch court assess?

Recognizing an error is the beginning of the analysis

Article 359a of the Code of Criminal Procedure contains the framework for certain irreparable procedural errors in the preparatory investigation. Not every problem in a criminal case is automatically included. Therefore, first ask which action is being criticized, in which phase it took place and what regulations applied. Conversely, a concrete indication of unlawful conduct should not disappear in the general comment that procedures are simply complicated. The correct facts and applicable rule must be made visible. (Code of Criminal Procedure contains the framework for certain irreparable procedural errors in Article 359a)

Make the complaint precise: who did what, when, on what basis and which document describes it? For example, it was not just the police who simply entered, but the question of whether permission, authority or necessary authorization existed for the specific act. The guide to searching helps identify your own research question. Our conclusion is that a defense becomes stronger mainly through demarcation. The more specific the alleged defect, the more specifically the lawyer can determine whether there is actually a procedural error, whether repair is possible and which legal framework applies. (guide on search)

The Supreme Court describes various possible responses

In HR December 1, 2020, ECLI:NL:HR:2020:1889, the Supreme Court discusses the framework for procedural errors. The legal consequence must be tailored to, among other things, the protected interest, the seriousness of the violation and the disadvantage, with attention to proportionality and subsidiarity. The judgment is not a rule that every unlawfulness leads to exclusion of evidence. In fact, it makes it clear that different problems may require different responses. A determination of absenteeism can sometimes be sufficient; in other circumstances a more drastic consequence may arise. The concrete motivation is essential.

Also read the result of the judgment carefully. In the case in question, the entire prosecution was not terminated. The Supreme Court only quashed the ruling for the sentencing and dismissed the case because the court had not sufficiently assessed the alleged violence in the request for a reduced sentence. That limited dictum prevents a wrong practical lesson. A statement about serious treatment can be relevant without saying that all evidence is invalid. For each ECLI used, ask which part was actually decided and which facts were decisive.

Sometimes it is first necessary to investigate what can still be corrected

A missing piece, incomplete report or unanswered research question can sometimes be supplemented or investigated. Then the first useful request may be aimed at recovery, not at a definitive sanction. Consider requesting a complete recording or interviewing an official involved. The difference is practically large: a missing registration can make the actual circumstances uncertain, while the original act itself may have been lawful. The lawyer must be able to indicate which research can clarify the problem and why this is important for your defense.

For each defect, write down what could still be available and who has it. If a file is in danger of being lost, timely security may be a priority. Do this via the appropriate route; do not alter or copy unauthorized data to prove the defect yourself. A recovery request should also make a distinction between what you know for sure and what you suspect. This accuracy also makes it possible to assess later whether the solution provided was sufficient. A general demand to do everything again often provides less direction than a specific question about the missing part.

What interest is protected by the regulation?

Not every regulation protects the same interest. For example, some rules serve the freedom to declare without undue pressure, others protect personal privacy or the verifiability of a power. State why you were affected by the alleged violation. That requires more than just finding that the police made a mistake. The judge must be able to assess the significance of this for the case. A general desire to monitor all investigative practices is different from a substantiated defense about the concrete preparation of this prosecution and the law at stake.

Use plain factual language in addition to the legal standard. For example, describe which opportunity for consultation was missing or which investigation took place outside the stated authority, insofar as this follows from the data. Then let the lawyer explain the protected interest legally. This way you prevent a difficult concept such as privacy or fair process from being used only as a label. The same set of facts can affect different interests, but these must be explained separately. Otherwise there is a risk that a really relevant point will be buried under a long list of big words with no verifiable connection to the file.

A concrete violation requires concrete consequences

Map out the consequences of the action. Was information lost, were you unable to have an important investigation carried out, has your freedom to make statements been affected or is it some other violation? An adverse outcome of the criminal case is not automatically the legal disadvantage that must be associated with the procedural error. That distinction can feel difficult, but it is necessary to determine which response is appropriate. Also indicate which consequences have already been repaired and which still exist. It is not about formulating it as seriously as possible, but about a verifiable description of the actual influence.

Our analysis is that it helps to draw a causal chain: action, direct consequence, influence on the research and remaining problem. For example, an incorrect date in a report can be cleared up with an original recording; the absence of that recording can give a different situation. Keep hypothetical possibilities recognizably hypothetical. A defense is not strengthened by presenting every conceivable consequence as certain. With an accurate overview, the lawyer can decide which statement requires proof, which conclusion is legally defensible and which investigation is still necessary before a legal consequence is argued.

Unreliable evidence is a separate evidentiary law question

A file can be unusable because it is not sufficiently clear what it represents, even without evidence exclusion as a sanction being the correct route. The distinction between acquisition method and reliability avoids confusion. For digital or technical data, ask how selection, registration and interpretation took place. The legal question may then be whether this material can reliably support the proven case. Another problem is that reliable material has been obtained through an unlawful act. The defense must identify which of these issues is at stake and whether both may need to be discussed separately.

A concrete example is a transcript of which essential passages do not correspond to the recording. It must first be investigated which content can be reliably determined and how the difference arose. That is not an automatic reason to remove every other piece from the file. Provide page numbers, time codes and the passage in question to the lawyer and keep the available versions. A clear difference in a defined component can provide a strong research question. A general accusation that everything has been manipulated can cloud that investigation when there is no factual basis for it.

Exclusion, reduction of sentence and inadmissibility differ

With evidence exclusion, certain material is not used for evidence. A reduction in sentence affects the appropriate sentence and is therefore a different response than acquittal. Inadmissibility of the Public Prosecution Service is a particularly far-reaching decision with a high threshold. The right to a fair trial in Article 6 of the ECHR is an important assessment point, but not every procedural problem makes the trial as a whole irreparably unfair. Let the requested legal consequence match the nature of the violation and the options for dealing with the consequences in a less drastic manner. (right to a fair trial in Article 6 ECHR)

Also discuss what practical exclusion would mean for the remaining evidence. Perhaps it concerns a central file; perhaps there are other independent sources. A successful defense against one piece of evidence does not automatically predict the final verdict. The defense can primarily argue for a certain response and alternatively another, provided the substantiation remains clear. A checklist with only the desired outcome lacks the analysis of why that response would be legally and practically appropriate in this case.

Fictional: a short interrogation fragment without the context surrounding it

In this completely fictional example, Milan is presented with a written interrogation passage. He says that an earlier question is missing and that he had asked to consult with his lawyer. The preparation consists of two different lines: what is the complete and reliable content of the conversation, and have his rights been respected during the interrogation? His lawyer requests specific information about the registration and the progress. The mere feeling of having been misquoted does not prove the violation, but it does constitute a concrete starting point for an investigation into the passage in question and the request submitted.

If a complete recording turns out to be available, it can resolve some of the uncertainty. If the stated consultation problem also appears to exist, the lawyer must separately substantiate the meaning and the appropriate legal consequence. The fictional example has no predetermined exclusion. It shows why source research and legal defense complement each other. A recording that clarifies the text may answer one complaint while keeping another procedural point in focus. By not compressing those questions into one general demand to stop the case, the analysis remains verifiable.

Seven questions for a substantiated negligence defense

Use one card per disputed action and link each answer to a source or specific research question. This map is an editorial tool and not a substitute for legal review. Even a seriously experienced event must be translated into the correct legal framework. Leave unknown details blank instead of filling them in yourself to complete the desired conclusion.

• Action: who did what, when, in which investigation phase and on the basis of which recorded authority or decision?
• Standard: which specific regulation would have been violated and what interest does that regulation protect in your situation?
• Fact basis: which document, recording fragment or witness data supports the alleged violation and what is still uncertain?
• Connection: what evidence or procedural problem arises from the action and how exactly does that connection work?
• Recovery: what research, access or other provision can clarify or compensate for the consequences?
• Disadvantage: what concrete disadvantage remains and why is it more than just the existence of incriminating evidence?
• Response: what legal consequence is requested, why is that appropriate and what does it mean for the other assessment of the case?

A legal defense must be discussed in a timely manner

Provide the overview to the lawyer well before the substantive hearing. Some questions require time for a request to the judge or another authority. The guide to the preparatory criminal hearing helps to distinguish the investigation and preparation phase from the final assessment. Ask what action is needed now and what can only be discussed at the substantive hearing. Save new information with date and source, so that it is clear later when a point became known and what opportunity there was to investigate it further. (guide to the preliminary criminal hearing)

A careful file remains precise even after a favorable interim decision. Note what the judge has decided and what question is still open. A granted investigation request is not an established violation, and an established error is not a guaranteed acquittal. The useful result is a clearly defined problem that can be legally assessed. Anyone who connects prescription, fact, disadvantage and desired response gives the judge more guidance than a collection of unlawfulness labels. In this way, a truly important procedural point receives the attention it deserves without promising an outcome that the law does not automatically prescribe.