Sam Redman's Musings

Random thoughts on a variety of subjects

Evidence of guilt in the Natalee Holloway case

By Sam Redman

Two exculpatory statements – are admissible as evidence of guilt

Recently, because of the role of my software developmental enterprise, writeandshow.com, which provides the online tools for a book on the Natalee Holloway case entitled (ironically, considering the subject and content of this essay), No Evidence of a Crime, by Jan Brennan, I have had occasion to ponder again the circumstances regarding the guilt or innocence of Joran Van der Sloot and Deepak and Satish Kalpoe in the case involving the mysterious disappearance of Natalee Holloway. What follows is an updated essay, a portion of which I wrote back in the fall of of 2005. It was published on an inner page of a website (called Scrux.com), but it largely went unnoticed, perhaps because that site never gained a huge following or really probably because it lacked a sufficient introductory explanation or a proper conclusion, both of which I have made an effort to remedy in this rendition.

There is legal precedence which states that juries (in the United States) can consider as evidence or proof of guilt in crime when a defendant prior to trial has made a statement which was intended to cause suspicion to be directed away from any wrong doing and that statement is later proven to be false by his own second statement also proclaiming his innocence. Any such statement in which anyone describes their own lack of involvement or circumstances which would be for the purpose of absolving them of criminal involvement is known as an “exculpatory statement.” Of course, innocent people usually give such an exculpatory statement when they are first queried about their involvement in a crime (because such is true). Typical exculpatory statements are “I wasn’t there at the crime scene” or “When I last saw her she was fine.” Joran and the Kalpoes both provided the police with such exculpatory statements when they explained that they “Dropped her off at the Holiday Inn and she stumbled toward the entrance.” Then approximately ten days later they retracted that story. Some said the retraction was made after being confronted with the Holiday Inn surveillance video footage, but other reports say that the front cameras were inoperable and that it was because Joran had confided to a friend that the Holiday Inn dropoff was a lie, who then told Joran’s parents, who convinced Joran (and perhaps the Kalpoes) to tell “the truth.” Whatever the circumstances, after about ten days had passed, the Kalpoes were arrested and brought in for questioning and they now told police that they left Joran and Natalee at an entrance to the beach and Joran revised his statement saying that after walking with her on the beach, he left her there in a drunken state. The problem with the two stories is realized with a simple bit of legal deductive reasoning. The following discussion is an exercise in legalistic logic and it can serve to gain a very interesting perspective on why so many people remain convinced (in spite of no other evidence of a crime) that the three suspects are guilty.

US case law which speaks to this situation:

“When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine. The instruction is aimed at pretrial fabrications, and is not generally appropriate for casting doubt on a defendant’s trial testimony.”
United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).

Both stories are exculpatory

Saying the two versions are both exculpatory means that both of them taken at face value (by themselves) are stories which describe no criminal involvement. They serve to clear the suspect of any wrong doing.

In a criminal proceeding, if a witness tells one accounting and then recants, and then tells what he now says is the truth (usually in the face of some evidence from another source, which would be incriminatory), you look for the reason he told the first lie. Invariably, the sequence makes sense, because while the first accounting was exculpatory (describing innocence), the second story (the truth) will be in some way incriminating (non exculpatory), therefore explaining or demonstrating the reason or need for the original lie.

So the logic to be applied is that when you have two stories, and the first one is recanted for the second, but both are exculpatory, then you also suspect the second, because a recanted exculpatory alibi should logically be replaced with a story which confesses to, at least, some criminal activity (for example, accidental death and hiding a body or something worse).

Where does this logic take us? It takes us to the understanding that, according to the experiential record of practiced interrogators, Joran’s second story is also a lie or, perhaps, a partial truth. Maybe he did leave her on the beach. So, that part would be the truth (making the new story easier to tell and swear to). The various theories could then apply: Maybe she died accidentally. Maybe he went back and buried her (maybe with Deepak’s help). Maybe, later he made arrangements (with perhaps a drug acquaintance) to have the body removed and disposed of at sea. Pure speculation, of course.

It is important to consider that in the practice of studying testimony and applying logic to the way witnesses testify, especially concerning their own alibis, suspects who provide an exculpatory alibi and then recant that story, have traditionally done so because the truth (which they were trying to hide with the first story) describes their involvement in a crime.

Joran’s wanting to avoid embarrassment reason for telling his first (now admitted lie) simply doesn’t rise to an appropriate level to assume any kind of logical justification for providing such a complicated cover-up story.

Further US case law references on this subject:

“False exculpatory statements are properly admissible as substantive evidence tending to show consciousness of guilt.”

United States v. Hudson, 717 F.2d 1211, 1215 (8th Cir. 1983) and cases cited therein.

This Circuit has repeatedly held that an instruction of this nature:
“is properly given when a defendant . . . offers an exculpatory explanation which is later proven to be false.”
Wells, 702 F.2d at 144; Hudson, 717 F.2d 1211;

See also Rizzo v. United States, 304 F.2d 810, 830 (8th Cir.), cert. denied, 371 U.S. 890 (1962), and cases cited therein.

See further, Wilson v. United States, 162 U.S. 613, 620-21 (1896) indicating that such conduct formerly gave rise to a “presumption” of guilt.

It is easy to see why so many people (including the television show talking heads) remain convinced that at the least the three suspects have not told the whole story and worse they are covering up for a serious crime which some speculate was disposing of the victims body after an accidental death and some think even murder. Hopefully, investigators are not at a dead end. The best approach in some people’s opinion would be attractive awards for people giving information, which would lead to the arrest and conviction of anyone who participated in a crime.

Courts in many circuits have approved giving juries instruction of this nature:

“False exculpatory statements are properly admissible as substantive evidence tending to show consciousness of guilt.”

See, in addition to the Eighth Circuit cases cited above,
United States v. Zang, 703 F.2d 1186, 1191 (10th Cir. 1982), cert. denied, 464 U.S. 828 (1983);
United States v. McDougald, 650 F.2d at 533 [noting that such instructions “have long been approved by the courts” (citing Wilson)];
United States v. Boekelmon, 594 F.2d 1238, 1240-41 (9th Cir. 1979);
United States v. Pringle, 576 F.2d 1114, 1120 (5th Cir. 1978).

So, it is apparent that the exculpatory lies told by both Joran and the Kalpoes, proven to be false by their second, also exculpatory, tale would be sufficient evidence for conviction of a crime if they had been charged, indicted and tried in a United States court of law. The gravity and significance of this first exculpatory lie is made even more applicable as evidence of guilt when it is known that that first lie was not corrected until ten days into the search for the missing girl with the obvious intent (because the defendants were aware of the investigation, concern of her family and friends that she had still not been found) of misleading the police to assume that no harm had come to her and to be less diligent in their investigative and search efforts. And while the title of the book is “No Evidence of a Crime” such a premise is indeed proven false by the application of the substantial legal precedence regarding the admissibility of exculpatory statements subsequently established to be untrue by the defendant’s own later additional exculpatory accounts of their involvement.

— Sam Redman

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This entry was posted on July 17, 2009 by and tagged , .