IV.10 Summary

The crime control part consists of two overarching criteria: effectiveness and efficiency. The method should achieve its purpose and, given the limited capacity and budget of the justice department, it is important to have insight into the costs that are necessary to achieve the purpose of the method. To make this cost-benefit analysis, the following requirements are used within the criteria efficiency: (1) input; (2) throughput; (3) output; (4) outcome (and, optionally, (5) impact).

However, the assessment should start with an analysis of the effectiveness. If a method is in fact ineffective, it is pointless to make a cost-benefit analysis. The calculation of the effectiveness of a method begins with the result (output) of the method. The effectiveness depends on the question of whether and to what extent the results contribute to the achievement of the intended purpose of the method. If the result of the method contributes to the target, then the method is effective (to some extent). This is called the outcome of the method.

To assess the effectiveness of an investigative method, an exact purpose of the application of the method should be established. This is the first requirement of the criterion effectiveness. While an investigate method is generally used as a method whereof the results contribute to the truth, this still leaves a lot of exact possibilities open. For example, investigative methods in the use of a telephone by the suspect can be used to eavesdrop on conversations so that evidence can be gathered, the telephone can be used to pinpoint the exact location of the suspect handling the phone or the telephone can be hackef to gather sent messages or contact information of other persons in a criminal organization.

That the precise purpose must be known for the evaluation of the effectiveness of the method, does not in any degree determine the effectiveness. It is a necessary preliminary requirement. The effectiveness of an investigative method can be established on the basis of the following three requirements: Firstly, the method should be valid, id est the method should measure what it claims to measure. Secondly, the method should provide consistent results. A measure is said to have a high reliability if it produces similar results under consistent conditions. When a method provides consistent results and is not influenced by random, situational factors, the results of the method are reliable. Thirdly, not only the validity of the method influences the reliability of the results, also, the capability of the expert plays a significant role.

A very effective method that always achieves its purpose but thereby fully consumes the entire budget of an organization, is an unsuitable means. In addition to the effectiveness of a method, close attention should be paid to the efficiency of the method, because the capacity of the justice department is limited in that sense that it cannot solve all crimes. The efficiency of a detection method will depend on the amount of resources (input), tasks, processes and activities (throughput) which are necessary in order to obtain the results of the method (output). If the costs of the application of a method and the effect of the method are known, an analysis can be made of how and to which extent the investigative method can contribute to truth finding and at what cost.

In this research, three human rights are used to formulate requirements for the due process assessment of the application of investigative methods, namely: (1) the right to respect for human dignity; (2) the right to respect for private life and; (3) the fair trial rights: the privilege against self-incrimination and the right to remain silent. Below I focus on the differences and similarities between these rights so that they are formed into a single framework in which two due process requirements emerge: (1) prohibiting unlawful coercion and; (2) the promotion and protection of autonomous choices.

The selected human rights all prohibit, in one form or another, the application of investigative methods under coercion. Despite this similarity, there are clear differences in the nature and degree of compulsion that are prohibited under the right to respect for human dignity, the right to respect for privacy and the fair trial rights.

The requirement of prohibition of unlawful coercion consists of six prohibited forms of coercion. These are (1) the prohibition of degrading treatment; (2) the prohibition of unjustified unequal treatment; (3) unwarranted infringements of the protected private zone; (4) risks for the integrity of law enforcement; (5) penalties for failure to cooperate and; (6) forced to reveal contents of the mind.

The prohibition of degrading treatment, as part of the requirement of the prohibition of unlawful coercion, is based on Margalit’s Decent society and the jurisprudence of the HRC, the ECtHR and the BVerfG. Margalit describes humiliation as an impairment of the inherent and intrinsic honor of a person, the self-respect that one has for himself. The ECtHR held that the authorities humiliate a person inter alia when their behavior ‘arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’. A possible form of behavior that falls within the scope of this description, is behavior that endangers the physical health of a person. This primarily concerns the actual infliction of pain or injury from the use of unnecessary violence. Such treatments completely ignore the fact that a person is not (or at least not solely) an object. Violence, besides that it is physically unsafe, diminishes self-esteem because the violated person cannot control himself, his life and body at that time but has to suffer the behavior of the authorities with no way out. Furthermore, this behavior is more often not designed to break a person’s resistance. In my view, this can only be described as an attack on self-esteem, as the person is most likely to act contrary to his previously taken, but now broken resolution. For the criminal procedural law in general, and the use of investigative methods including memory detection in specific, this means that only strictly necessary force is allowed to coerce the cooperation of a suspect. Violence that is not strictly necessary degrades the suspect to an object.

The other part of the right to respect for human dignity that is important for the assessment of the application of investigative methods, is a guarantee against unjustified unequal treatment. Humane treatment implies equal treatment. Unequal treatment is humiliating because the person is identified with a category. He is no longer an individual human being but, for example, part of a particular race. This ‘objectification’ makes him merely an object of the state and its criminal law policy. The labeling of the suspect as part of a category as his only distinguishing characteristic completely ignores his inherent human capacities and that is humiliating. Regarding unlawful coercion by investigative methods, this yields a fairly simple criterion that will normally not lead to problems in the Dutch criminal procedure. For this requirement prohibits discrimination in the form of unjust unequal treatment. Discrimination is degrading because it completely ignores the inherent human capabilities and a distinction is made purely on irrelevant characteristics.

Secondly, the right to respect for privacy is used to formulate requirements for the just application of investigative methods. Privacy means, firstly, that a portion of the private life can be isolated or can be kept secret from the outside world. Secondly, privacy also means that people are allowed to make decisions about (the quality of) their own lives individually and independently (without the coercion of others and the authorities). It is the first meaning of the word private that prohibits unlawful coercion. It creates a private, secluded zone (where autonomous decisions can be made). This part of life can be shielded from the outside world and is not freely accessible, and consists of: (1) the home; (2) the body (including the mind); (3) confidential communication and; (4) information. It is therefore a spatial form of privacy (the house and the space around the body), a physical form of privacy and informational privacy. A violation of any of these privacy aspects implies coercion. However, most of the infringements on the right to respect for privacy are justified under certain conditions. The justification criteria for privacy interferences can be classified into different categories. Firstly, there should be procedural conditions that impose requirements on the attribution of privacy infringing powers, namely that (1) attribution of the compulsory power must be based on an Act of Parliament, (2) that provision must be accessible and (3) clear so that it (a) permits anticipated breaches and (b) contains safeguards against abuse. Secondly, the application of the compulsory power should be limited, for example to by which offences it can be used. Even though the law provides the possibility of a privacy breach, the specific application may still be unlawful, namely when the application (4) serves no legitimate purpose; (5) is disproportionate or (6) a less stringent alternative can be applied or; (7) the application proves an integrity risk for the authorities.

Furthermore, there is, at least in my view, a privacy aspect that can be secluded absolutely, to ensure that everyone can develop and express his personality to some degree of freedom. This privacy aspect consists of what I believe is the ‘core’ of personality, namely the forum internum, or what in the German jurisprudence is known as the Innenbereich, and should receive absolute protection against infringement. This protection includes all methods that in some way change or influence conscious thought, consciousness and/ or personality characteristics, such as hypnosis, brainwashing and deep brain stimulation. These methods should be banned from a criminal law context. In this way, it remains impossible for the state to (completely) explore and change unwanted ideas of citizens, to suppress people by creating a state of lethargy or collect secret personal views against the will of the person.

In addition to these aspects of privacy, in the Dutch parliamentary documents and in the Dutch jurisprudence close attention is paid to investigative methods that infringe a person’s privacy and pose an integrity risk for the authorities. The main example is the method of infiltration, which leads to an interchange between the criminal world and the ‘outside’ world. Because this requirement is used as an aspect of the right to respect for privacy in the parliamentary documents, I also take it into account in this study as a requirement of due process. In my view, the requirement limits the use of investigative methods in two ways. Firstly, certain methods, which constitute too great a risk to the integrity and manageability of the investigation, must be prohibited in absolute terms. Secondly, certain methods that may pose a risk to the integrity and manageability of the investigation, must be fixed with stringent safeguards so that the risk is kept as small as possible. One of main safeguards should be that the authorities have excellent monitoring possibilities over the use of the method.

The prohibited coercion in the light of the fair trial rights ‘the privilege against self-incrimination’ and ‘the right to silence’, depends on the nature and degree of the compulsion. The following kinds of compulsion can be prohibited: (1) fines; (2) imprisonment; (3) torture, inhuman or degrading treatment and; (4) breach of other fair trial components. This means that there is a partial overlap between the unlawful coercion to the right to respect for human dignity and the privilege against self-incrimination, because both prohibit degrading treatment. In addition, the privilege against selfincrimination has a unique character in particular by prohibiting penalizing non-cooperating suspects as unlawful. So, a non-cooperating suspect cannot be threatened with a custodial sentence to obtain evidence, and high amounts of fines are also prohibited.

The last requirement stems from the right to remain silent. Whether the right to silence can be evoked is dependent on the question form, but is independent of the reply form. In other words, the right to silence protects communication in a broader sense than just verbal expressions. Unlike the privilege against self-incrimination, which provides protection of evidence under certain nature and degree of compulsion and is therefore means-based, the right to silence protects against the coerced acquisition of the contents of the mind of the suspect. A right to silence that is limited in the sense that it includes only a few forms of communication, is hollow because the verbal form of communication can be bypassed easily (such as by memory detection). The right to silence therefore protects, in my view, contents of the mind as a type of evidence. The right to remain silent, however, only protects contents of themind that are not disclosed yet because the suspect is being questioned at this moment, to which an immediate response is required. It is this future disclosure to which the right to remain silent applies. The right to silence has – from the perspective of the accused – three characteristics: (1) he cannot be compelled to disclose (2) still to be revealed (3) contents of the mind.

Prohibiting and regulating coercion is not only a goal-in-itself of the legal protection of the suspect. Firstly, some requirements offer a safeguard against unreliable evidence. Secondly, and this is for now the most important, the selected human rights ensure the absence and/or regulation of coercion so that the suspect is brought into a position in which independent and autonomous decisions can be made in the criminal proceedings. In other words, by prohibiting certain types of coercion and by regulating other types of coercion, the accused is not only an object of criminal policy and investigation but also an autonomous participant in the proceedings. The second legal requirement that follows from the analysis of the right to respect of human dignity, the right to respect of privacy and the privilege against self-incrimination and the right to silence is the autonomy of the suspect.

For the autonomous position of the suspect in criminal proceedings, this means, in my view, that the accused should be given rights that make it possible for him to act as an autonomous person. These rights are due to the suspect because firstly the suspect is the subject of a ‘story’ in the form of an indictment. The ‘lead character’ in that story is the suspect, but he is not the author of the indictment. It is inhuman to silence that person in the complete proceedings, so that he has to suffer to be indicted but cannot voice his view on the matter. If he cannot influence the gathering of evidence and the court’s decision, he is solely an object of the state’s criminal policy. Therefore, he should be offered the possibility to exercise influence during the process by making use of its unique human capacity.

Secondly, the suspect is not only the subject of the indictment, he has a personal story to tell that is based on his observation and experience of the event. Every story has multiple sides. Because a story is based on personal observations and experiences, the suspect should be given the option to bring his view forward. The suspect is not attached to the criminal proceedings as an observer. He has his own interests in the process. He must, as an autonomous person, be able to influence the outcome of the trial. Therefore, the proceedings should enable him to tell his personal story.

Thirdly, the suspect is the ‘master’ of his personal story. This means that the suspect should be allowed to choose independently if and to what extent he discloses his personal story. In this part the nature and degree of compulsion to disclose information play an important role. Methods that use the suspect as a tool – such as deception or physical or psychological violence – can cause the situation in which the suspect does not tell his story. Summarized, the humane, autonomous treatment of the accused implies that, if (1) he is the subject of an indictment, (2) he should be able to give his personal view on the matter (3) independently.

In summary, this means that the following requirements of neuropsychological memory detection must be assessed before it can be introduced in line with the requirements of crime control and due process in the criminal procedure: First, it must be determined to what extent the method is effective, idest to what extent does the method achieve its intended purpose and what are the necessary conditions of validity and expertise to provide reliable results. Secondly, a cost-benefit analysis should be made to assess the efficiency of the method. Furthermore, two due process requirements should be met, namely that the method does not use unlawful coercion and the suspect should be given right(s) to ensure his autonomous decision-making.

Firstly, memory detection is an effective and efficient method of criminal investigation. Culprits are correctly identified in 80% of the cases and an innocent suspect in approximately 94% of the cases when certain circumstances are met, such as provision of safeguards within the procedure against leakage of information and experts should be trained to compose and administer a memory detection test. Furthermore, the costs are estimated mainly on the Japanese praxis and range between € 535 and € 795 per test. This is less in comparison with a dynamic observation of individuals or infiltration into an organization.

Secondly, however, in my opinion the method cannot be lawfully administered against the will of the suspect. That a person is physically fixated to be examined is not an insurmountable problem. Certainly not because it only takes place for one hour. The fact that a biological trace (brain activity), which exists independently of the will of the accused, is obtained also provides no insurmountable problems. In this sense, the breach is lighter than the infringement by the removal of human tissue for DNA testing because a DNA profile contains much more information than an EEG acquired brain activity pattern. However, the fact that a person cannot independently choose to disclose memories is unlawful. Regarding the right to respect of privacy, the privacy of an important protected part – namely personal memories – will be abolished when memory detection is used. Memory detection also humiliates the suspect because the administration of the test and the forced disclosure of memories will reduce the suspect to an object. And finally the right to silence will turn into a hollow right if memory detection will be allowed. A suspect can still choose to remain silent when confronted with verbal questions, but his silence can be bypassed with the memory detection method because his brains cannot ‘remain silent’. With memory detection, there will no longer be any possibility to autonomously decide on the disclosure of personal memories.