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Research project

Evidence: fact finding

Leiden Law School has a strong tradition of research in the field of fact-finding and evidence in criminal cases.

Contact
Roosmarijn van Es

For decades now, research into the law of criminal evidence and proof has focused on criminalistics, legal psychology and forensic criminology. Following a number of miscarriages of justice that have come to light in recent years, the topic of fact-finding has attracted considerable public interest. The process of investigating and establishing the facts within criminal proceedings is a particular focus of debate both within and outside the field of criminal law.

The aim of this research project is to identify and answer fundamental questions regarding the nature and scope of fact-finding within criminal proceedings and the validity of related research methods. This involves a combination of legal, social science and technical concepts and ideas.

To that end, we are addressing the following specific questions:

  • What is fact-finding and what does the obligation to seek the truth entail?
  • With that in mind, are the tasks and powers effective and sufficiently justified with regard to the rule of law aspects of breaches of citizens' freedoms, their privacy and the right to a fair trial?
  • How is fact-finding perceived and shaped by parties in criminal proceedings? How do these perceptions relate to views on fact-finding in politics, legal politics and society?
  • Which chain factors influence the fact-finding process and how it is perceived?
  • Which psychological factors influence the fact-finding process and how it is perceived?

This research project focuses on all parties involved in fact-finding in the Netherlands: the legislature, the police, the Public Prosecution Service, the defence, experts and judges. The fundamental issues surrounding criminal fact-finding call for an interdisciplinary approach that incorporates perspectives from epistemology, legal psychology and neuropsychology. The strong connection between criminal fact-finding and the nature of criminal proceedings (inquisitorial/adversarial, common law/civil law) necessitates comparative law research that factors in international developments within this field.

Researchers from various disciplines are involved in this research project. The researchers within this project also work in legal practice, for example as deputy judges and deputy justices. They lecture on evidence for the judiciary, the Public Prosecution Service and legal practitioners and are also involved in training expert witnesses. The researchers also sit on committees and advisory boards such as the Netherlands Register of Court Experts (NRGD) and the Netherlands Expert Committee for Equivocal Sexual Abuse Allegations (LEBZ), where their knowledge is used in a broader social context.

Ongoing research projects

Researcher: Linda Geven

Imagine you’ve been convicted of a crime you didn’t commit. It sounds contradictory, but miscarriages of justice across the globe have shown that innocent people make false confessions under pressure. To date, however, we have been unable to identify false and true confessions, which has had profound implications. Using new experimental methods, this project aims to establish the causes of false confessions. Innovative lie detection techniques based on bodily reactions and language will be used to uncover the truth behind the confession.

Researchers: Linda Geven in collaboration with Jenny Schell-Leugers and Teresa Schneider

The aim of this project is to collect data on European miscarriages of justice and create an online register in order to inform academics, lawyers, the police, students and policymakers about the number, causes and implications of wrongful convictions in Europe. The register will provide detailed information on successful judicial reviews within Europe, which will be compiled into statistics and reports on the acquitted individuals and underlying factors in academic publications and visual infographics.

PhD candidate: Kiki Twisk

Supervisors: J. W. de Keijser and J. H. Crijns

Kiki Twisk is investigating the interaction between forensic technical experts and litigants in criminal cases. Her research is at the intersection of criminal law and criminology, and she applies a variety of legal and qualitative empirical research methods, including interviews with almost all parties involved in the forensic aspects of criminal cases. Through her research, she will discover what the interaction between litigants and forensic experts involves and any obstacles that may arise in terms of establishing the facts in criminal cases. The research focuses on the entire criminal process, with specific attention to topics that were underexposed in previous empirical studies. Examples include the formulation of questions to the various types of forensic investigators and the role of forensic reports in the criminal process.

PhD candidate Hanne Klapwijk

Supervisors: J. W. de Keijser, J. H. Crijns, L. M. Geven and M. Lochs

The search for material truth forms a key part of criminal procedure in the Netherlands. Forensic psychological expertise can play a key role when it comes to assessing evidence in criminal cases, for example.

The law of criminal evidence gives the court a huge amount of freedom to select and assess evidence. Evaluating the reliability of evidence is one of the primary tasks of a criminal court judge. At the same time, by applying scientific knowledge about fundamental psychological functions and social factors, a forensic expert can make a decision about the reliability and quality of that same piece of evidence. Forensic experts and criminal lawyers can therefore work on the same issues from their own disciplines.

This research bridges the gap between science and legal practice. It is an interdisciplinary study at the interface of forensic psychology and criminal law that aims to gain an insight into how forensic psychological expertise is used and applied within criminal cases. The second objective involves identifying obstacles, with a specific focus on their causes. The third and final objective is to propose solutions to bridge any gaps between the disciplines.

PhD candidate: David Sander

Supervisors: J. H. Crijns and F. P. Ölcer

Legal entities facing criminal charges (Article 51, paragraph 1, Dutch Criminal Code) have the right to due process (Article 6, European Convention on Human Rights). As this is a human right, its applicability to legal entities is an anthropomorphism. This research delves deeper into this: which specific due process issues arise for legal entities facing criminal charges? ‘Due process issues’ are issues related to a fair trial that natural persons facing criminal charges experience less frequently, less quickly or differently from legal entities, or not at all.

Take the following example: natural persons and legal entities facing criminal charges have the right to remain silent. However, a special issue arises with legal entities: they cannot speak or remain silent in their own right, but depend on individuals to exercise their own right to remain silent. Who, if heard in a criminal investigation into a legal entity, may remain silent on its behalf and who may not? Uncertainty about this raises the issue of the legal entity’s legal protection in terms of its right to remain silent. The aim of this research project is to identify these and other special due process issues that may arise for legal entities facing criminal charges. Another aim is to explore potential solutions where the issues identified are proving to be problematic.

PhD candidate: Mojdeh Kobari

Supervisors: J. W. Ouwerkerk and J. M. ten Voorde

The modernised Dutch Code of Criminal Procedure is now at an advanced stage, with the new code expected to take effect on 1 April 2029. While this is a very comprehensive operation, the modernisation of digital investigations, on the other hand, is quite limited in nature. This limited modernisation, which clings onto a system based on premises created for the physical world, faces a number of criticisms. One question that has arisen is whether and to what extent it is sufficient to apply traditional legal frameworks within an online environment.

Within this research, we will consider which premises underlie the national legal provisions for digital investigations, how those premises affect the workability of digital investigations and what it means for the desirability of the premises. There will be a specific focus on the Dutch Computer Crime Acts I, II and III, as well as the ongoing modernisation of digital investigations.

Recent key publications

The researchers’ profile pages contain more relevant publications on this theme.

Ansems L.F.M., Bos K. van den & Mak E. (2023), Experimental insight into the fair process effect and its boundary conditions: external attributions may moderate reactions to procedural justice in legal contexts, Erasmus Law Review 2023(1), 1-13.

Boone M.M., Dubelaar M.J. & Wingerden S.G.C. van (2022). Een meer structurele inzet van de videoconferentie in strafzaken? Lessen uit empirisch-juridisch onderzoek naar de ervaringen met digitaal horen tijdens de COVID19-pandemie, Nederlands Juristenblad 97(11), 830-836 (NJB 2022/689).

Crijns, J.H. (2023). Opsporing. In J.H. Crijns, E.R. Muller & R. Robroek (red.), Openbaar Ministerie. Organisatie en functioneren van het Openbaar Ministerie in Nederland, Deventer: Wolters Kluwer 2023.

De Boer, H.H., Fronczek, J., Berger, C.E.H., & Sjerps, M. (2022). The logic of forensic pathology opinion. International Journal of Legal Medicine, 136, 1027-1036.

Es R.M.S. van, Doorn J. van, Kunst M.J.J. & Keijser J.W. de (2023). Opening the Black Box of Judicial Decision-Making in Cases with Forensic Mental Health Reports: A Qualitative Study from the Netherlands, Journal of Forensic Psychology Research and Practice: 1-26.

Geven, L.M. & Van den Doel, H.K. (2023). Miscarriages of justice in the Netherlands. In J. Robins (Ed.), Murder, Wrongful Conviction and the Law - An International Comparative Analysis. Routledge, Taylor and Francis Group.

Lochs M. & Iqbal S.E. (2023). Tegenspraak in strafzaken: essentieel voor de waarheidsvinding in het contradictoire proces?, Rechtsgeleerd Magazijn Themis 184(2): 96-108.

Sander D.B., Wijngaard S.J.C. van den & Kobari M. (2022), De reikwijdte van artikel 359a Sv: vormverzuimen bij en onrechtmatigheden buiten het voorbereidend onderzoek, Delikt en delinkwent 52(5): 447-472 (DD 2022/32).

Twisk K., Crijns J.H. & Keijser J.W. de (2022), Actie is reactie: Hoog tijd voor het klaren van de mist rond de vraagstelling aan forensisch technisch deskundigen in strafzaken, Expertise en Recht 2022(5): 164-174.

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