Maarten Pijnenburg and Jordi L'Homme in Het Parool: 'Better record statements in criminal cases'
https://www.parool.nl/columns-opinie/juristen-leg-verklaringen-in-strafzaken-beter-vast~b1327cb7
According to lawyers Maarten Pijnenburg and Jordi l'Homme, the Supreme Court is rightly critical of the "Mr. Big method" used in crime fighting.
Recently, the Supreme Court handed down two judgments (in the "murder in Kaatsheuvel" case and the "Posbank murder"), ruling that the so-called "Mr. Big method" is inadmissible under circumstances.
The Mr. Big method refers to a covert police operation that attempts to get the suspect to make a confession. In this form of infiltration, as in the well-known Netflix series Undercover, made friends with the suspect to gain a position of trust. A fictitious criminal organization is set up (unlike in the series) and the suspect is made a lucrative offer to join it.
The suspect is offered jobs and "grows" in the organization as a result, until the (fake) boss Mr. Big discovers that the suspect is linked to a murder and confronts him about it.
The murder poses a risk to the organization, and the suspect is given the choice of confessing on the spot so he can get something for him, or not doing so and leaving.
Cat and mouse game
Crime fighting - to put it simply and unscientifically - often has the character traits of a Tom and Jerry movie. This involves investigative agencies using technical tools to "hunt" suspects and sometimes criminal organizations that regularly outwit them.
Tracking down serious crime has, of course, long been a cat-and-mouse game between investigative agencies and suspects, with the Justice Department making use of special investigative methods such as working under cover and infiltration. Within this category of cases, the question is always how far the police may go in (undercover) operations.
In general, the police may not be guilty of entrapment and may not exert undue pressure. In fact, there are also known cases in which even after a confession, the wrong suspect was convicted (in that regard, think, for example, of the Schiedammer Park murder or the Anna Post case). This does not only happen in America.
In the recent rulings, the Supreme Court ruled that the cases should be reviewed because the trial court did not provide sufficient reasoning as to whether there was undue pressure on the defendants through the Mr. Big method.
Freedom of explanation
The criticism of this method consisted of three elements:
(1) Can it be subsumed under the current law provision of systematic intelligence gathering?
(2) Is it a reliable method, isn't there a great risk of false confessions, when someone is in a financial or social dependency situation on an organization?
(3) Is this method consistent with the freedom of explanation a person has in the criminal process?
The Supreme Court does not rule in general terms on a confession obtained by the Mr. Big method, but indicates that it depends on a variety of circumstances to determine whether the defendant's freedom of explanation has been infringed. This will have to be assessed and adequately justified by the fact-finding judge in each individual case.
Audiovisual recording
The great gain of both Supreme Court rulings is that the Council indicates that in addition to reporting by means of verbalizers, auditory or audiovisual recording should also take place, if possible. Otherwise, the judge - loosely translated - cannot adequately check whether or not the freedom of explanation has been violated.
It makes the process more verifiable for all process participants. The registration seems like a very small step, but for legal practice - and especially for the legal profession - it gives a better handle on whether investigating officers have gone over the line.
The problem we as defense attorneys have encountered so far is that the minutes made available to us and to the court or tribunal are often a "slick" version of reality and sometimes even a possibly falsified version. These - in other words - did not always correspond to reality.
After probing conversations with our clients, it appears that sometimes much more pressure was applied, or more promises were made, than the record led us to believe.
If judges would "take a fist" in response to these rulings and apply harsh sanctions, such as exclusion of evidence, if no audio(-visual) recording took place, we would be one step further along the road to a fair trial.
Not being able to control detection is asking for trouble.
Analogous to the slogan of a well-known detective agency, we would argue: trust is good, but recordings are (in this case) better.
