International Law

NATALEE HOLLOWAY CASE: ETHICAL AND OTHER ISSUES

By Karel.Frielink

Undercover operation and huge TV circus ethical?

Crime reporter Peter R. de Vries paid the 34-year old business man who befriended and secretly recorded Joran van der Sloot some US$ 35,000. Bounty hunters are a well-known phenomena, also on TV, as are rewards offered by police or private persons. We have all seen episodes of ?America?s Most Wanted?. I guess nowadays practice shows that one could serve both the law and one?s own wallet simultaneously.

The business man gained Joran?s trust, also by smoking marijuana together (click here). So the question is, actually how stoned were these two man during their conversations? Shouldn?t there be at least a code of ethics for crime reporters and the people they hire?

De Vries runs a TV-show and by building a huge television circus around this particular episode (e.g. by showing up in talk shows beforehand and not disclosing what was on the tapes for several days) he showed that he needed (and got) his ratings: 7 million people in the Netherlands watched his show last Sunday. Are we talking about a trial by media here? Considering the fact that Peter R. de Vries stated time and again that he has solved the case (which is not a certainty at all), Joran seems to be convicted by this TV show. The business man who secretly taped Joran said on ABC News: ?We’re going to punish him. His punishment will be very simple, sir. He’s gonna get a lifetime sentence. Maybe not in jail. But I would not want to be Joran van der Sloot after everybody in the world sees these undercover tapes. ? There ain’t no rock in this world you can crawl under.”

The media plays an increasing role in solving criminal matters, but prosecutors they are not and they should refrain from acting as if they are. In my opinion, the media should balance out a suspect?s right to a fair trial and the public?s right to be informed. The question is whether Peter R. de Vries crossed a line here. This issue remains yet to be determined, but I?m at the very least sceptical towards this style of reporting.

From what I understand, Joran was videotaped for approximately 25 hours. It goes without saying that in order to form an educated opinion about all conversations between Joran and his ?friend?, one should view all the tapes, not just the part that was aired. That certainly goes for a public prosecutor. The interpretation of  Joran?s account  is not merely a simple grammatical matter. Also of significant relevance is the context in which it was told. And the tapes that were not aired might very well offer more insight in the relevant context of his wording. After all, to determine the trustworthiness of a conversation, and in particular a confession, one should also take into consideration the circumstances surrounding it (e.g. the influence of drugs or pressure, the mental state of the person involved, etc.).

As far as confessions under U.S. law are concerned, I refer to the Fulminante decision (Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302). Fulminante confessed a murder to a fellow inmate, who actually was a paid federal informant, in return for protection. Fulminante was subsequently indicted for the killing, and his confession was used at trial despite his objection. A jury found him guilty of murder and sentenced him to death. The U.S. Supreme Court applied the so-called harmful error test (with respect to the Miranda rights: the right to be informed expressly of the constitutional rights before interrogation begins) and found that the jurors most likely would not have convicted Fulminante had they not heard his coerced confession, thus its use at trial was harmful. The Court ordered the case back for a new trial, this time without use of the confession.

Karel Frielink
Attorney (Lawyer) / Partner

p.s.

1. For an update on the case itself see CNN’s website
2. See also the comments of the Dutch Public Broadcasting Ombudsman (in Dutch)

Full post as published by Karel's Legal Blog on February 07, 2008 (boomark / email).