#70: Speech is silver, writing is golden

In the pre-COVID world both suspects and witnesses were usually interviewed face to face in a Dutch criminal procedure. Over the past decade the interview via video conference has entered the toolkit, but face to face interviews were still most common. The idea behind this is that face to face interaction obviously gives more information than only words. Nevertheless, since COVID, written interviews in criminal procedures have begun to take off. Initially as a means to limit contacts and movements. But now it seems to have proven its own benefits.

One of the main arguments for face to face interviews is the believe that the interviewee will speak the truth. It is the belief that the suspect who is given the opportunity to put the answers on paper in his own time, and with or without a lawyer present, could easily adapt the facts to his own narrative. But does that belief actually make sense? By confronting a suspect with certain questions on the spot and putting him or her under a certain amount of pressure, answers might be provided more quickly. But that does not necessarily mean that such an answer also reflects the truth. As we all know, there is a long list of miscarriages of justice and false statements which indicate the lack of truthfulness in such answers.

In fraud cases there is also another risk in answering questions on the spot from the top of one’s head. Often the topic matters are complex, involving all sorts of figures and clauses in documents or records, which mostly date back many years. The chance that the interviewee can properly remember exactly what happened – on the spot from the top of his head – is small. The likelihood is that the answer is not in line with the facts just because nobody’s memory is so accurate it can remember numbers and dates from years back. This is not only problematic for the suspect, but also a risk for the investigating authorities. After all, their goal is first and foremost to find the truth.

To avoid giving an inaccurate statement, the suspect will often, whether or not on the advice of the lawyer, decide to invoke his right to remain silent during an interview. Witnesses however have an obligation to testify and cannot remain silent. They have to answer truthfully. Of course the witness can express that he or she does not remember the answer to the question, but this does not help the fact finding.

But these are not the only arguments against conducting a physical interview. The Dutch system does not work with verbatim interview reports. Usually there is not even a video or even an audio file of the interview recorded. Such records – other then in other jurisdictions – are not required by law. In practice such records are only made in exceptional situations. In the Netherlands, an ‘objective’ report of the interview is drawn up. The questions of the authorities are written down, as well as a summary of the answer of the interviewee. Of course, the interviewee and the defense are allowed to check what is stated in the report before it becomes final. However the only means the interviewee has to object against the content of an interview report, is to not sign it. This is of course tricky when it comes to the goal of finding the truth, especially since the Dutch criminal procedure grants great value to such reports drawn up by the authorities.

The worry that the interviewee can provide a wrong answer in a written interview is ill-founded. The witness always has to answer truthfully. Not doing so in writing could even be a criminal act. The same applies to a face to face interview, but only when the witness is put under oath. As far as the suspect is concerned, he is never obliged to answer or to answer the truth. Nor in a face to face interview, nor in a written interview.

An interview in writing turns out to be a proper alternative, particularly in complex fraud cases. It not only offers time to properly think of the answer to a question and to use own words to provide the answer. For a suspect, it even allows for a more proper reconstruction of the facts based upon documents. It also guarantees a truthful recording of the statement in the case file.

Do you have any questions or would you like to exchange views with us? Please contact us at boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.