On 11 May 2022, the case 'the Petten camping murder' dealt with again by the court. Again, because there had been an irrevocable conviction for manslaughter since 1995. However, the evidence had been adopted almost exclusively on the basis of the defendant's confessed statements. However, new expert evidence revealed serious doubts about the credibility and reliability of these confessions. So much doubt, in fact, that the Supreme Court, following the review petition filed, ruled that the case should be tried again. Indeed, had the Court been aware of the findings in this new investigation at the time, the Court would (most likely) have acquitted.
miscarriages of justice
Exonerations following a successful review petition are also known as 'miscarriages of justice'. Not entirely justified, as the judge simply relies on the knowledge and expertise available at the time, or rather the information provided by the defence or the prosecution. So it may well be that a conviction is handed down on the basis of incriminating expert reports, while fellow experts would have thought quite differently if their opinions had been sought. Also, experts are by no means always equally expert in certain specific areas. Or scientific and technological advances lead to new insights, as a result of which an expert opinion - and thus the final verdict - cannot be upheld.
Assessment and registration of experts in the NRGD
Because there are different views on whether someone can be considered an expert, the Board of Judicial Experts was created. Its aim is to promote, register and publicise the quality of experts. Because reality is becoming increasingly complex, partly due to technical developments, more and more fields of experts are being added. Already, one can think of: DNA and handwriting experts, experts in areas such as the production process in the manufacture of narcotics, forensic Weapons and Ammunition investigation, digital forensics, (software, database, multimedia and device forensics). And, of course, psychological, psychiatric and forensic medical experts. When reporting by government agencies, it is worth consulting the registry first. The rapporteur in question may not have the appropriate expertise to be classified as an expert.
Counter research
If an incriminating expert opinion is brought into the proceedings by the public prosecutor, the accused or defence need not be satisfied with it. He has the right to have his own counter-expertise carried out. The costs for this can be recovered from the State if the importance of the counter-examination in the criminal case is proven. This does not require waiting for the entire criminal trial. The advantage is that it can be decided whether a report will be brought into the proceedings. The disadvantage is that the investigation does have to be paid for in advance by the accused.
Another option is to ask the court to order counter-examination. This is not granted lightly. According to the Supreme Court, when assessing a request for a counter-investigation, important factors include (a) on what grounds the request is based, (b) what interest the defence has in a counter-investigation in the light of, for instance, the other evidence or the evidential value of the contested investigation result, (c) whether a counter-investigation can still be conducted and (d) whether the defence could have made the request earlier.[1]
An alert and proactive defence
Reasonable, properly justified requests should therefore be granted in principle. This may be different if this is waited too long after an incriminating investigation or if, for instance, certain traces have already been destroyed. The defence should therefore be alert here. And not only when it comes to having a counter-investigation carried out in time. The defence can also proactively request that certain investigations be carried out. The expansion of the expert register also expands the possibilities for the accused to proactively challenge the suspicion. After all, an expert report can also prove that a certain accusation made by the prosecution cannot be true.
A counter-investigation report as substantiated as possible
The judge is not obliged to give more weight to the results of the counter-investigation than to the first investigation. If expert reports contradict each other, the defence will have to argue why one conclusion should be followed and not the other. Where possible, the defence will have to ensure that the report carried out in favour of the accused is substantiated as well as possible. This increases the chances of that conclusion being followed by the court. And not years later, having to await the outcome of any review proceedings.
Mr. D.M. Penn
[1] ECLI:NL:HR:2018:115