Most of the time we have nothing to do with the legal system in other countries. But as a carpenter is always eager to be on top of developments in the wood-area, a lawyer should also be oriented on legal developments in other countries, especially in France, Germany, America and England.
by Cor Merx
A good example is the dogma (the theory) about the poisoned fruit.
It was developed in the USA and came over to the Netherlands in the 70ties. It says (in my common words): if an investigation starts with an unlawful act, the proof that is found at that moment is poisoned. It means that the rest (could be) poisoned also.
If the police is doing a traffic control and start to search a car, the search could be unlawful because a traffic control is something else than searching a car. It is called: abuse of the law. So everything found during that control – could be – poisoned by the first act that was illegal.
The question however is: how do you prove that the first action was not an illegal act of the officers? I wrote about this in my earlier columns. If it is a traffic control, we are talking about a “paper control” unless at that moment the officer becomes aware of something he sees in the car that is not “kosher”. For instance he looks through – a not blinded window – in the car and sees a body and blood on the back seat. At that moment he is legally controlling the papers but he became at that time aware of another crime. He is allowed to continue with the second investigation. Please be aware: this is a simplification of something that is for the legal professionals a daily battle in court.
The prosecutor has to always come with the evidence but a suspect only needs to “indicate” that something went wrong. But if the defendant indicates an issue, he also should substantiate it with reasonable facts and circumstances. It sounds reasonable so far.
How does this work in the daily practice of a lawyer?
If the lawyer comes with strong and reasonable indications but he is not able to prove the issue, the judge could order the prosecutor to re-investigate it. If not: the lawyer’s argument (the defendant’s point of view) will not be deemed reasonable and it will be rejected.
Here comes the point: when is it not reasonable and when should it be rejected?
A client told the judge that the prosecutor was not on the island when Irma came over, so he had no clue what happened with his (the defendant’s) personal circumstances. The judge told the client “not to get personal” against the prosecutor. But the question is: was the client right or wrong? If the mother does not find a piece of bread for her children and is later found with a bread in her hand on the street, it could be that she was looting; but the circumstances indicate also the possibility that she got a bread from a looter (it’s not theft but fencing). But if the judge is holding the arguments on a block, there is no chance for the mother to defend herself; unless we have the judge who presided over the Tromp case who was really aware that he has to deal with two parties fighting in front of him: the prosecutor with a case to get proven and the defendant with the solution to get the best out of it.
We see that in the Tromp case the judge went more than once back to earlier statements of the prosecutor. He wanted to keep the prosecutor to his word. In that situation the defense lawyer gets a chance to substantiate his arguments for a false or a misleading probe. And…it worked out. See the judgment; Tromp was set free.
I saw the Wall Street Journal on November 25, 2017, and my attention was drawn to an article where the Judge – Emet Sullivan – recommends: “that all States and Federal Courts have to follow New York’s lead and he requires trial judges to issue “Brady orders” in all criminal procedures so that prosecutors can be held – personally – accountable if they withhold critical evidence that is in favor to the accused.
But now the question is, is this news a new item? Is this coming from the US to our system? I do not think so, but it was never before pronounced as firm as now. Do not forget: when I started practicing law in 1979, times where quite different. Everyone went on his knees and took off the hat when the authorities came in. Nowadays the tolerance of judges is higher (see the Tromp case) and more reasonable for arguments from the side of the defense lawyer. That’s in my opinion what I would call: “a fair trial”. Always hear both sides of the story.
So the issue is not new but it is like the saying: “old wine in a new bottle”. In my young years there was a prosecutor who held a youngster in custody unless the judge ordered his freedom. That prosecutor was held personally responsible by the Supreme court in Holland.
So there is a reason to open the bottle but.. only if the arguments are reasonable. Too much reasons come from stories like ”my grandfather’s niece and uncle always told me” or “the black-white card” is put on the table.
But if you have good reasons, do not step aside but bring it forward. That’s what the court is for.
