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Vulnerability of Dutch Criminal Procedure to Wrongful Conviction (From Wrongful Conviction: International Perspectives on Miscarriages of Justice, P 157-182, 2008, C. Ronald Huff and Martin Killias, eds. -- See NCJ-225376)

NCJ Number
Chrisje Brants
Date Published
26 pages
The Dutch “inquisitorial system” of criminal law and its vulnerability in producing wrongful convictions is discussed, as well as the meaning of “wrongful convictions” and whether the usual dichotomy of the “adversarial” and the inquisitorial” systems is a viable one.
This chapter begins with the contention that not only is no one system is better than the other, but also that the inherent strengths of either the adversary or the inquisitorial system become their inherent weaknesses when underlying assumptions as to the best way to guarantee truth finding in a fair trial do not, or no longer, hold true. Certain types of procedures are prone to certain errors and the Achilles heel of Dutch procedure seems to be twofold. First, truth finding is dependent on nonpartisan pretrial investigation by the police under the supervision of the prosecutor. The second major weakness is again in theory a major strength: the active, truth-finding, professional court that is not dependent on what parties put forward or on their skill cross-examination, but can control and conducts its own investigation at trial, can have witnesses appear, can order the prosecution to produce documents, and can examine witnesses at length. Add to this the subtle pressure of public opinion and there becomes a ready mix of factors that render Dutch criminal procedure more vulnerable to miscarriages of justice than it seems at first sight. It is the author’s contention that the great strengths of the two predominant procedural traditions in law, the adversarial and the inquisitorial, are also potentially their great weaknesses. This chapter explores this notion by examining the vulnerability of Dutch inquisitorial procedure. It focuses on what are, in theory, its great strengths (the notion of impartial pretrial investigation and the role of the prosecutor). It attempts to show that when the assumptions on which these features are based are not met, the attendant safeguards against erroneous convictions are eroded accordingly. Notes and references