You’ve no doubt heard of cases where someone has been convicted ‘on the basis of lawful and convincing evidence’, or acquitted because such evidence was lacking. But what exactly do those words mean? And why are both equally indispensable? As a criminal defence lawyer, I’ll explain it to you.
The golden rule of criminal law
The foundations of Dutch evidence law are set out in Article 338 of the Code of Criminal Procedure:
"”The court may only accept that the defendant committed the offence with which he is charged if, on the basis of the evidence presented at the trial, it has reached the conviction that he did so through the content of lawful evidence.”
One sentence, two requirements: the evidence must 1) be lawful and 2) the judge must be convinced. If either of these is missing, a conviction is impossible.
What constitutes legal evidence?
Admissible evidence is evidence derived from one of the five types of evidence recognised by law. Article 339 of the Code of Criminal Procedure She lists them exhaustively: the judge’s own observations, the defendant’s statement, a witness’s statement, an expert’s statement and written documents, including the police report.
The emphasis on exhaustive is crucial. This means that a judge may not take into account any evidence outside this list, however convincing that evidence may seem. Anonymous tips or an investigator’s gut feeling: these do not count as independent evidence in criminal proceedings. At most, they may serve as initial information for an investigation. The legislature has deliberately kept this list closed in order to prevent arbitrariness and to protect the suspect.
When is there sufficient legal evidence?
Having admissible evidence is one thing — having sufficient admissible evidence is quite another. The law imposes specific requirements on the quantity and quality of evidence. It follows from both legislation and case law that there must be at least two pieces of evidence from different – and therefore independent – sources. The best-known rule is: one witness is not a witness. Supporting evidence is therefore required. If there is no (independent) supporting evidence, there is insufficient legal evidence for a conviction. For example, a diary does not constitute independent supporting evidence if it was written by the complainant herself.
What constitutes convincing evidence?
Even if all the evidence does come from lawful sources, there is still a second hurdle: the judge must be personally convinced that the defendant committed the offence. Conviction is an inner, subjective certainty. The judge is free to assess the reliability and weight of each piece of evidence — but that freedom has its limits. Any doubt must be resolved in favour of the defendant, and the judge’s conviction must be explained in a comprehensible manner in the judgement.
The double lock: both lawful and convincing
Suppose the police have illegally monitored a suspect through wiretapping and have obtained highly incriminating information. Nevertheless, the judge may not simply use that evidence if it has not been admitted as lawful evidence in the proceedings. Conversely, a stack of police reports and witness statements does constitute lawful evidence, but if the judge has doubts about their reliability, he must not pass a conviction.
The system has therefore been deliberately designed as a double lock. Both cylinders must be turned; otherwise, the lock will not open. The admissibility requirement determines what can be used as evidence and protects you against evidence obtained unlawfully; the requirement of proof beyond reasonable doubt protects you against conviction based on dubious or unreliable material. If the defendant puts forward an alternative scenario that is not a priori implausible and is substantiated in a concrete and verifiable manner, the court must not simply disregard it. If the court does not accept the alternative scenario, it will have to explain why not. If the court fails to set this out in writing, an acquittal is the logical outcome.
What does this mean for you as a suspect?
A criminal case is not always what it seems. Sometimes, at first glance, there appears to be sufficient evidence to secure a conviction. But when the evidence is assessed for its legitimacy and reliability, there is often far less left. And if either the lawful or the convincing evidence is entirely lacking, an acquittal may be the only outcome. Even if the criminal case sometimes looks bleak, sufficient lawful and convincing evidence is not simply taken for granted. As a specialist criminal defence lawyer, I am well acquainted with this distinction and will put my expertise to work for you.
Mr. D.M. Penn