#08: Truth is stranger than fiction

Does the truth exist? In criminal cases the answer to this is questionable. Since the criminal procedure takes place after the alleged crime, the truth is always a reconstruction of what might have happened. Therefore it seems fair to say that the truth does not exist. In a criminal procedure the next best thing can be achieved; finding facts that are closest to the truth. The law provides us with tools to do so. The rules regarding lawful evidence are incorporated in the Dutch Criminal Procedural Code. In this article it will be questioned whether the legal provision giving more evidential value to reports from police officers is in accordance with the aim of finding the (next best) truth.

Depending on the case, material such as e-mails, contracts, camera footage, forensic material, witness statements and statements of suspects are the ingredients to find the facts in order to establish the legal ‘truth’. Based on these facts a reconstruction of the alleged criminal offence can be construed. Or if you will, a scenario of what could have happened will be created.

But how much evidence is needed to reach a conviction? In the Netherlands we have an important rule; one witness is not enough. There has to be more evidence supporting the witness statement in order to convict the suspect. The Dutch law however makes one exception; the statement of a police officer according to the law – article 344 (2) Dutch Criminal Procedural Code – is of such value that a suspect can be convicted based on such a statement. No other piece of evidence is needed. But is this provision still realistic when the goal of a criminal procedure is to find the facts closest to the truth? Based on recent case-law we believe that this rule actually harms the search for the so called truth.

Case-law shows that the statements of police officers are not always representing the truth. And sometimes this does not happen by accident, case-law shows that sometimes these reports are false. But how does the defense proof that a statement of a police officer is false? Unfortunately there is no such thing as a mathematical formula to decide whether the report is false. However, case-law shows that it is worthwhile to carefully analyze (crucial) police statements in a case and to compare it to other pieces of evidence in the case file in order to find any inconsistency – how big or small they might be – to start unravel the truth about some police statements.

The Dutch Supreme Court quite recently had to deliberate on this matter in a case in which the suspect was being suspected of threatening a police officer with his life. The threats would have been made by the suspect while he was being arrested for another alleged offence. The suspect claimed that the police used unlawful violence during his arrest, which was not documented in the report of the police. Fortunately in this case camera footage was available which provided clarity about the arrest. Both the Court of first instance and the Court of Appeal found the violence disproportional; it was outrageous according to the judges. The violence was used after the suspect was pepper sprayed and already lying on the floor. However, the police report did not contain the whole truth. In the report it was stated for instance that the suspect was not hit in the head, while the camera footage showed otherwise. The judge found that the interests of the suspect were deliberately neglected. However the interests of the suspect are not damaged in such a way that the prosecution should be found inadmissible in the sense of article 359a DCPC. In articles #02 and #05 the scope of this provision is explained. The reason for not declaring the prosecution inadmissible is that the camera footage in hindsight has repaired the report of the police officer. This case however shows in our opinion that the report of the police officer in this case does not meet the evidential value the Criminal Procedural Code requires. If the camera footage wasn’t presented, this suspect could have been convicted based on a report which in reality is false.

But this is not the only example. The Court of Noord-Holland decided in 2013 on a similar case in which the police reports turned out to be false as well. The Court concluded that no mistake was made, the report was intentionally drawn up not representing the whole truth. In this case, four of the eighteen phone taps reports were drawn up falsely, one was incomplete and one was unverifiable. The Court found that the reports were made up false intentionally. The case judged by the Court of Amsterdam on 2 March 2012 was not any different. In both cases the prosecution was declared inadmissible.

These cases again show that judges should not blindly rely on police reports . These examples from case-law show that some police officers shake up the ‘truth’ a little. And for what? To enhance the chance of a conviction? In our opinion article 344 (2) DCPC gives police officers too much power in criminal cases. Even though we do not question the majority of the police officers who have not and will not misuse this power, case-law proofs that this provision is ready for contemplation.

In the past years this issue has been addressed in the Dutch Parliament. The Minister of Justice has announced that reports of police have a key role in the criminal justice system. That is why the prosecution service and the police are obliged to offer high quality and that the truthfulness of the reports should be their priority.

We find that the accuracy that is expected of the people should also be pursued by the government. Police officers have to be independent, however sometimes the temptation not to act independently (apparently) cannot be resisted by some. In our opinion, as a result of the aforementioned case-law, the evidential value of the police officer reports have in general immensely decreased.

Recently mr. Meike Lubbers published her research on this phenomenon. In this book she challenges the reliability of police reports, more specific she challenges the value of the truth as presented by police officials.[1] Not only because in the (not limitative) examples as set out in this article, but also because police officers are human. The observations of police officers therefore cannot be deemed flawless by definition. Nevertheless the law qualifies them as flawless and the judge has to do the same. In our opinion this provision should be reviewed. The upcoming modernization of the Dutch Criminal Procedural Code – of which the first redrafted chapters are announced to be presented in January 2017 – would be a great opportunity to do so.

Until then the defense has to be creative in procedures. Case-law in our opinion gives a lot of ground to convince the Court that the assessment of police reports should be done carefully. As the foregoing makes clear not only some police reports are stranger than fiction, the same applies to some provisions of the Criminal Procedural Code.

What is your experience in your country? Are police reports of a higher evidential value than other documents when it comes to legal evidence? And is this ‘privilege’ being misused on occasions?

[1] Mr. M.A. Lubbers, ‘De waarde van de ambtsedige waarheid’, Celsius, 2014.