EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, February 5, 2008

Aruba, Jamaica, Take 2: Top Dutch Lawyer Contends That Tape May Be Inadmissible Even Though Obtained Without The Assistance Of Police

Yesterday, I wrote about how I thought that the secret videotaped confession of Joran van der Sloot would be admissible assuming that Aruban criminal law (which is modeled after Dutch criminal law) is similar to American law in deeming confessions inadmissible if unconstitutionally obtained by the government but admissible if unconstitutionally obtained by a private citizen.

Top Dutch lawyer Gerald Spong, however, has contended that the videotape obtained by Patrick van der Eem in collaboration with crime reporter Peter R. de Vries, "was, according to the European Court, a violation of the right of privacy. This court decided that monitoring and recording conversations by a private person in the context of and on behalf of an official investigation with the use of technical assistance of the police, is inadmissible."  Furthermore, "[a]ccording to Spong, even without the assistance of the police, penetrating the personal life with visual technical means is also inadmissible.  'But if that illegal evidence is given to justice on a silver platter, it may still be used in some cases, according to the verdict. I am not certain whether this is also the case here but it is indeed exciting.'"

The issue thus seems very muddled, with the possibility that an Aruban court could just as easily find the tape admissible or inadmissible.  What seems clearer according to Spong and to people watching 20/20 last night is that van der Sloot's was not an explicit confession of murder, merely a confession that he had some role in hiding Holloway's body after she died.  And, according to Antillean and Aruban law, a person who buries, hides, carries off or takes a body with the intent of concealing the death, will be sentenced to a maximum of 6 months imprisonment or a fine of a maximum of 300 guilders. It is not possible to keep the person in custody for such deed.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2008/02/aruba-jamaica-1.html

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