Proof in criminal law

Before a suspect can be found guilty, it must be proven that he has committed a specific offense. Guilt can only be proven in the Netherlands by using legal evidence, which is laid down in our Criminal Procedure Code. Apart from these legal evidence, the court may not use other forms of evidence to assume the suspect's fault. Here an explanation of the evidence system in our criminal law.

Evidence systems

We have one in the Netherlands negative legal proof system (see art. 338 Sv). Together with the positive-legal system, this system is one of the two forms of legal evidence systems. In addition to these legal systems of proof, we also have two forms of free systems of proof: the system of the conceited conviction and the system of the reasoned conviction. With regard to exposing the convivial conviction, only the conviction of the judge about the guilt of the accused plays a role. The judge does not have to argue why he is convinced of the defendant's guilt. This is different with regard to the system of reasoned conviction, in which the court must also be convinced of the guilt of the accused, but it must also be explained why this is so. That decision must therefore be justified.
At the positive-legal The evidence system requires the judge to adhere to the evidence presented to him by law. Only on the basis of these means of evidence may the judge convict a suspect of being guilty of a criminal offense. With this system of evidence, however, if the court has a certain number of means of proof that can be used to prove guilt, the suspect must also be regarded as guilty. The judge must then convict, even though the judge is not convinced of the guilt of the accused. This is slightly different with the negative legal evidence system. Here too, the judge must, in his conviction, look at the means of evidence provided by the law; outside of this the judge may not accept other means of evidence for the conviction of the suspect. However, the conviction of the judge about the guilt or innocence of the suspect plays an important role in this system of evidence. The system will not oblige the judge to convict a suspect against his will, if the judge has any doubts about the suspect's guilt, he must acquit himself.

Characteristics and functioning of our evidence system

As I said, we have a negative legal system of evidence in the Netherlands. The first characteristic is the judge convinced must be the fault of a suspect. If this is not the case, acquittal must be made. The second characteristic is that this conviction must be based on the legal means of proof from art. 339 Sv. This article lists five means of evidence that may play a role in the conviction of a suspect. Other means of proof are therefore not permitted and cannot result in a conviction. The third characteristic means that there must be at least a minimum of evidence to be able to convict someone, the evidence minima. An important minimum of evidence is laid down in art. 342 paragraph 2 Sv. It states that the court may not declare the indictment as proven if this statement of evidence is based only on one witness statement. An exception to this is that one witness statement can prove part of the indictment. On the right there are a number of others evidence minima in our criminal code, such as art. 341, paragraphs 3 and 4, Sv. Another important example is art. 344 paragraph 2 Sv. This explicitly states that a judge may base a conviction as a whole on an official report of an investigating officer.
A fourth characteristic in our system of evidence is that the statement of evidence must concern whether the accused committed the offense. It is hereby emphasized that for the question of proof the court only looks at the first material question of art. 350 Sv. This is the question that the court must ask itself to see whether the offense can be proven or not and therefore whether the suspect has committed this offense. The question of proof does not therefore go as far as possible
looked at grounds for exclusion, such as bad weather. As a last characteristic, the conviction of the judge must come from the investigation at the hearing. At this crucial point it must be ensured that the means of evidence all of them, if used at least, were announced at the hearing. This with a view to the suspect, who must be able to defend himself against the means of evidence.

The means of proof

Art. 339 Sv our five legal means of proof are listed one by one. First of all, the observation of the judge mentioned, I will treat this evidence last, due to its complexity. As the second means of proof the statement of the suspect called. This means of proof is further elaborated in art. 341 Sv, in which we see that the suspect can make his statement in two ways: at the trial and earlier, for example at the police. The first phenomenon is simply called the explanation, the second the statement of facts. The statement serves as legal proof on the basis of art. 339 Sv. However, this is the question for the statement of facts. This is not enumerated in 339 Sv and everything that wants to be regarded as proof outside this article is therefore not valid as proof. However, this issue is resolved by art. 344 Sv, which states that written documents can also serve as means of proof (more on this later). A written record is in this case an official report. The police draw up this in response to the case of the suspect, in which the statement of facts (ie the statement) of the suspect is also recorded. This can also be counted as proof. A statement by the suspect is, of course, first of all seen as a statement by the suspect about the offense. However, it is also possible that the suspect denies the criminal offense for which he is rightly denied. This too can serve as proof, for example to prove the opposite! Especially if the denial can be considered a lie, it can be used as evidence. Please note: the other means of evidence must show that the suspect has told a lie, otherwise this statement cannot be used as proof to the contrary.
The third means of proof is one witness testimony elaborated in art. 342 Sv. A witness can be a citizen, but also just an agent or other investigating officer. The witness must provide an explanation of what he or she has observed and experienced. A testimony from a witness may therefore not be based on guesses or opinions. In addition, the witness may not draw any conclusions. If a witness does so, then the judge may not pay heed! The judge must therefore be able to distinguish between opinions and guesses and the truth. For this, according to case law, for example, the expertise of the witness (for example, a police officer or an ordinary citizen). It is also important to know that a distinction is made between the legality of a means of proof and the reasoning of a means of proof. For example, according to the law, a means of proof can be a legal means whereby this means can be used for the production of evidence, but this does not necessarily mean that the means can also lead to a statement of evidence, since it can contain very different statements from those required for the proof.
The fourth form of proof is that of one statement from an expert, elaborated in art. 343 Sv. Experts often provide on behalf of a specific person, such as the public prosecutor, all kinds of information about the suspect and the ongoing case. These findings are often recorded in written documents, which also constitute legal means of proof pursuant to art. 344 Sv. These findings are then usually explained by the expert during the hearing. This explanation often consists of two things: the expert gives a report of his findings, often on a scientific basis, in addition the expert often also gives his own opinion and links his own conclusions to it. The witness was not allowed to do this, but the expert is authorized to do so. The expert is expected to do this impartial does research and brings it this way.
The final means of proof are the written documents, elaborated in art. 344 Sv. In this article a number of written documents are mentioned that can serve as legal evidence. This is by far the most important category of evidence, namely the official reports. In practice, three requirements are set for the official report: this must only contain the officials' own observations and experiences, this must be made according to the legal form and this must have been made by a person authorized to do so. The requirements for an official report are set out in art. 152 jo. 153 Sv elaborated further, so the official report must be made under oath of office.
Finally I come to the own observation of the judge, further elaborated in art. 340 Sv. It states that the judge can only make his own observations during the investigation at the trial and therefore not afterwards! This form of evidence forms a kind of bottomless pit of supplying evidence. For example, during the trial the judge can see photos and recordings, which he can then take as evidence. This way important types of evidence are not excluded.

Video: Burden of Proof in Criminal Proceedings (April 2020).

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