<\/p>\n\n\n\n
In many criminal cases, witness statements play an important role. Their value is sometimes questionable. During the event about which testimony is to be given, witnesses are usually not gathering information accurately. A mistake is therefore easily made. <\/p>\n\n\n\n
In addition, witnesses may have been fed information by others that they could not have given on their own. Or the investigating officers did not ask enough questions, so that the witness statement could be called downright incomplete. <\/p>\n\n\n\n
Despite these caveats about the probative value of witness statements in general, these statements can be decisive for the court to arrive at a finding of proof. <\/p>\n\n\n\n
It is therefore an essential right of the accused to be able to cross-examine witnesses. This is because the accused must be able, on the one hand, to inform the judge of the value of the evidence presented and, on the other, to convince the judge that there is doubt about the accused's guilt. Unrestricted and unfettered questioning is the starting point here. The defence must be in the same room as the witness, it must be able to ask any question, that question must be answered by the witness and the defence must know the identity of the witness. However, a request to hear a witness should be made at the right time (preferably at the earliest possible stage) and should be properly substantiated. If this is not the case, these requests are often rejected immediately.<\/p>\n\n\n\n
However, it happens that this right to questioning is restricted by the court for other reasons. For example, if there is an endangered witness, a vulnerable witness, an untraceable witness or a witness who has been involved in the investigation under cover. <\/p>\n\n\n\n
If interrogation rights are curtailed, the judge may not simply use these statements for evidence. If the judge does so, violation art 6(3) of the European Convention on Human Rights lurks. The European Court uses the following decision model to test whether the Convention has been violated:<\/p>\n\n\n\n
1. Did the defence show sufficient initiative to question a witness? If no<\/em>, no violation. If so<\/em>:<\/p>\n\n\n\n 2. Was the defence given a proper and effective interrogation opportunity? If so<\/em>, no violation. If no<\/em>:<\/p>\n\n\n\n 3. Is the witness' testimony decisive? If no<\/em>, no violation. If so<\/em>:<\/p>\n\n\n\n 4. Has adequate compensation been offered? Or has the possibility of examining the reliability of the witness statement in a manner other than the aforementioned unrestricted and unfettered manner been offered? Consider an interrogation through intermediaries, using disguises, telecommunications, an expert opinion on reliability or an interrogation in a familiar environment. If so<\/em>, no violation. If no<\/em>, violation of the Convention if the statement is nevertheless used in evidence.<\/p>\n\n\n\n Indeed, if the judge continues to prevent the accused - despite his necessary efforts - from effectively rebutting the accusations against him through the exercise of his right of questioning, there is an unfair trial within the meaning of the Convention. <\/p>\n\n\n\n The above does show that the right to interrogate is anything but self-evident. Even when it comes to crucial witnesses. However, if a timely request and proper substantiation take into account the foregoing, there is a good chance that the court will have to grant the request to interview witnesses. Since truth-telling as far as the charged facts are concerned is the court's objective, the court may then want to grant it. Incidentally, I think the ascertainment of the truth would benefit if the defence were already present during the first hearing of a witness by the investigating officers. After all, a witness is not inclined to substantially alter a statement once made. But that is fodder for a new discussion. <\/p>\n\n\n\n Mr. D.M. Penn<\/p>\n\n\n\n <\/p>\n\n\n\n <\/p>\n\n\n\n <\/p>\n\n\n\n <\/p>","protected":false},"excerpt":{"rendered":" In veel strafzaken spelen getuigenverklaringen een belangrijke rol. Aan de waarde ervan valt nog wel eens wat af te dingen. Getuigen zijn tijdens de gebeurtenis waarover verklaard zou moeten worden doorgaans niet bezig met het nauwkeurig verzamelen van informatie. Een vergissing is dus gauw gemaakt. Daarnaast kunnen getuigen door anderen zijn gevoed met informatie, die zij […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-3413","post","type-post","status-publish","format-standard","hentry","category-strafrecht"],"_links":{"self":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/3413","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/comments?post=3413"}],"version-history":[{"count":0,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/3413\/revisions"}],"wp:attachment":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/media?parent=3413"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/categories?post=3413"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/tags?post=3413"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}