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

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Monday, February 4, 2008

Aruba, Jamaica, Oooh I Want To Take You: Aruban Chief Prosecutor Claims Tape Made By Private Citizen Admissible In Natalee Holloway Case

Ever since American teenager Natalee Holloway disappeared on the island of Aruba during a high school post-graduation trip, police say that they have done everything in their power to crack the case.  In the wake of a tape which was first broadcast on Dutch television on Sunday night, they might finally have their break.

Holloway was last seen leaving a bar with Dutch student Joran van der Sloot and two Surinamese brothers hours before she was due to board a flight home.  Police, however, have been unable to prove that van der Sloot caused Holloway's disappearance, that is, until the tape that aired on Sunday in a report by a Dutch investigative journalist. 

Apparently, Dutch businessman Patrick van der Eem, a 34 year-old Dutch businessman, befriended van der Sloot with the intention of prying a confession out of him. (echoes of Linda Tripp). van der Eeem then secretly recorded van der Sloot saying with regard to Holloway, inter alia, that while he was with her, "[s]uddenly she started shaking and then she didn't say anything."  "I would never murder a girl."  According to stories on the tape, van der Sloot said that after the shaking, he panicked and tried to revive her.  Stories are inconsistent as to what van der Sloot said next, but some are reporting that he said that when he was unable to revive Holloway he then asked a friend to drop her body in the sea.  Hopefully, any inconsistencies will be resolved in the special edition of 20/20 on the case tonight.

What is clear is that the tape led Aruba to re-open the case against van der Sloot, which it had previously closed.  According to Chief Prosecutor Hans Mos, it is also clear that the tape will be admissible because it was made by a private citizen without any influence by authorities.

Aruba's criminal justice system is mirrored after the Dutch criminal justice system, and I'm assuming that both are similar to the American justice system with regard to the exclusionary rule. See Kuk Cho, "Procedural Weakness" of German Criminal Justice and its Unique Exclusionary Rules Based on the RIght of Personality, 15 Temp. Int'l  & Comp. L.J. 1, 29-30 (2001) (noting that the Netherlands has an exclusionary rule).  Under the American system, while the exclusionary rule prevents the admission of evidence obtained unconstitutionally by government officials or those acting on their behalf in criminal cases, it does not preclude evidence obtained independently by a private citizen. See, e.g., Commonwealth v. Ellis, 208 A.2d 1090. 1091 (Pa. Super. 1992).  Assuming this is true, the Chief Prosecutor is correct that the tape will be deemed admissible, but maybe a Dutch or Aruban reader can confirm this conclusion.

-CM 

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