Pre-trial hearing: preparing investigation requests in a criminal case

Directing is about what is needed for good treatment

The procedural description of Rechtspraak mentions the investigation status, investigation wishes and further planning during the preparatory criminal hearing. The judge discusses with the Public Prosecution Service and the defense how the case can be dealt with on the merits. This does not make the hearing a free discussion in which every wish is carried out without substantiation. It is also not necessarily the point at which the entire charge is decided. Understand which questions need to be prepared now and which ones will come back later. (procedural description of the Judiciary)

Our editorial position is that a good research wish contains a small amount of reasoning: there is a relevant decision point, the available information leaves a concrete problem open and the requested action can investigate that problem. Only the word completeness is too broad. Conversely, a suspect does not have to prove exactly what a witness will state before an investigation can be useful. The lawyer translates the factual problem into the applicable legal framework and the required substantiation.

Start with the point of dispute, not with a list of names

A list of all people who were in the vicinity of an incident can be extensive without making it clear what they can contribute. Therefore, start with the specific conclusion that is being disputed. Is that the recognition, the time, a threatening statement, the role in a group or the reliability of a technical result? This is followed by which source may have information about that point. A source can also be a document, a camera file or an expert report.

Note what is already available and what is missing. If a witness has previously testified, state the location and subject on which further questions are required. If a camera may have captured something, describe the location and relevant time frame rather than asking for all images from the entire day without explanation. The lawyer can assess what degree of demarcation is appropriate. The goal is an investigative act that can reduce a relevant uncertainty, not the largest possible number of new pieces.

Not every request is assessed according to the same rule

The legal regulations and case law distinguish situations and moments when research wishes are made. Previous requests, timeliness, the function of a witness statement and the status of the treatment may be important. The Supreme Court has discussed various points of view on witness requests and direction in ECLI:NL:HR:2014:1496. That judgment is an important starting point, but subsequent case law and the specific type of request also remain important. One internet formula cannot apply to all witnesses. (ECLI:NL:HR:2014:1496)

Ask the lawyer explicitly which criterion applies to the request and what information is required to comply with it. It would be careless to promise that a witness reported in time will always be heard, or that a relevant point discovered late is by definition hopeless. Also describe why information only became available later if that is the case. A factual explanation of that timing is different from coming up with a reason afterwards. Save requests, attachments and responses so that their progress remains controllable.

What can this witness say from his own observation?

It must be clear to a witness which event he or she can explain. A friend who heard your story afterwards is not the same source as someone who saw the incident themselves. Both may be relevant in a particular context, but their knowledge base differs. Note the observation position, time and any limitations if known. Do not complete the expected statement in advance on behalf of the witness and do not present a wish as a fixed memory.

Do not approach a witness to agree on a desired wording. Well-intentioned questions can also influence memories or give the impression of attunement. Discuss with the lawyer how contact, availability and a formal summons are arranged. Having a witness come to court himself does not mean that the judge will automatically hear him. The questions that the defense wants to ask must be relevant to the relevant point in dispute. This also makes it easier to see why an existing explanation may not be sufficient.

An expert is asked a question within his field

An expert report can appear authoritative even though it only answers a limited question. For example, a toxicological result concerns measured substances and should not be converted into a judgment about every moment of a ride without further assessment. A digital report may discuss technical provenance without establishing the writer's intent. Investigate what assignment the expert had, what source data was used and what limitations were stated.

A request for further expert research should therefore contain a specific question. Does a calculation need to be checked, is a relevant assumption missing or is a different area of ​​expertise needed? Discuss whether existing data are sufficient and what practical results a new study can provide. Calling in another expert just because an initial conclusion is unfavorable does not provide a substantive counterargument. The added value lies in a verifiable method or question, not in the number of reports that repeat the same assumption.

A request for documents must make the information gap visible

Sometimes it is not a person missing but an underlying document or file. A summary report can refer to a recording, a measurement report or a complete conversation. Describe why the summary does not make the disputed conclusion sufficiently verifiable. This may concern the context before a quoted sentence, an identification number or the research method used. A specific request provides more guidance than just the general complaint that the police are withholding something.

In addition, keep in mind the distinction between requesting existing documents and having new research conducted. These are not always the same actions and they may have a different legal framework. The explanation of digital message evidence shows how a missing context question can be delineated. Limit your own technical conclusions to what the available information actually supports. If necessary, the lawyer can indicate which specialist is needed to responsibly describe the information gap. (Chats and screenshots as evidence in a criminal case)

Fictional example: a recognition and the position of a witness

Suppose that in a fictional case a witness recognized a person from across a street. The file contains a brief summary, but not how long the sighting lasted and what visibility there was. An undirected wish is that the witness tells everything again. A more targeted request links the recognition to questions about distance, lighting, duration and previous familiarity with the recognized person. The example is not a prediction that such a request should be granted.

The lawyer then investigates which information is already included in the statement or other documents and which questions are still open. If a map or image can clarify the observation position, it will be discussed as an additional source. The defense does not write down in advance what it believes the witness must have seen. The matrix contains the point to be tested and the possible source of knowledge. This means that even after a decision has been made, it is clear which uncertainty would or would not be investigated by the requested research.

Read a rejection carefully

When a request is rejected, the wording of the reasons is important. Has the question been deemed insufficiently relevant, is there no substantiation or does the judge believe that the available information is already sufficient? These answers require different next steps. Merely mentioning the same name again does not solve an unclear research goal. A later development may give rise to a request being discussed differently or again, depending on the procedure and circumstances.

Ask the lawyer what option there is to respond to the decision and whether an objection or request must be repeated at a later time. Not every interim decision can be directly challenged individually. Keep track of what content was submitted to the judge, what attachments were included and what was decided. A suspect's own note is not the same as the official recording of the hearing. If there is a relevant difference, check how it can be raised correctly.

Research is only useful if the result is discussed in a timely manner

An assigned request still needs execution. Note who is assigned the task, how a witness is called and when a result is expected. Ask what happens if the research is not completed in time for the substantive treatment. A report that arrives on the last day can raise new questions. This does not automatically mean that a hearing must be postponed, but it does require timely consultation about the possibility of properly assessing the material.

Personal availability and language assistance can also influence planning. Communicate relevant practical problems to the lawyer early. In the meantime, do not collect substitute material that obscures the original source. Save files unchanged and keep versions recognizable. The criminal procedure regulations and specific instructions from the court may be important for submission and communication. Good planning therefore not only contains desired dates, but also the confirmed process actions and their status. (criminal procedure regulations)

A research wishes matrix for the file interview

Create one row per request with the fields below. It is an editorial tool for organizing facts and questions, not a model to be submitted without legal review. The lawyer determines the procedural law formulation, the applicable standard and the appropriate moment. A matrix mainly helps to see whether a requested source can investigate a specific point of dispute and what uncertainty remains after implementation.

• Decision point: which specific conclusion about the accusation or another decision is disputed?
• Location: where is the source used in the current file?
• Lack of information: which fact, which context or which method is not yet verifiable?
• Research source: which witness, expert, recording or document can shed light on this?
• Question: What should be investigated without pre-filling the answer?
• Procedure: which criterion, term and method of submission does the lawyer discuss?
• Status: proposed, submitted, decided, implemented or result still to be discussed?