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How do I explain it to the relatives of the deceased? Reasons for acquittal

In cases of involuntary manslaughter due to a traffic accident severe sentences are not always imposed. In an article in the judicial journal Tijdschrift voor Rechtspraak en Straftoemeting, NSCR researcher Marijke Malsch discusses how judges explain the lenient sentences or acquittal to the relatives of the deceased. They often fail to explain that well in everyday language, which can lead to protest. Furthermore, judges do not always give enough recognition to the suffering of the relatives of the deceased.

In the case of a fatal traffic accident, the relatives of the deceased will find a severe sentence justified. They also expect that the judge will impose that. However, severe sentences are not always imposed in such cases. The judge primarily bases the sentence on what the driver can be blamed for and not so much on the consequences. Perhaps the driver only failed to look carefully. If no mistake was made or only a small mistake, then the judge will acquit the suspect or impose a lenient sentence.

Lay people do not understand legal language

Such an acquittal or “mild” sentence often leads to considerable surprise among the relatives of the deceased. After all, somebody has died so why does the judge impose such a lenient sentence? On one occasion, this led to a chair being thrown at a judge who imposed a community service sentence on the car driver who had run over two people who died as a consequence of that.
NSCR researcher and professor of Empirical Legal Studies at the Open University, Marijke Malsch, analysed 17 cases in which the victim of a traffic accident died and in which acquittal followed or a lenient punishment – mostly a community service sentence or sometimes a fine – was imposed. In her article about arguments for acquittal and sentencing, Malsch discusses how judges explain this to the relatives of the deceased. That often happens in legal language which lay people find hard to understand. Furthermore, judges often fail to give enough recognition to the suffering of the relatives of the deceased.

A clear sentence ensures more acceptance

Previous research revealed that an extra explanation by the judge could help with the acceptance of the sentence (Van der Maden, M., Malsch, M. & De Keijser, J.W., 2017, see also: “Waarom vinden burgers dat rechters te licht straffen? – Dutch only). When less educated people, in particular, receive more information about the background to the case, the demand for severe sentences decreases. Malsch put forward various arguments as to why the use of legal language can and must be avoided. She also presents an exemplary case with an explanation aimed at the relatives of the deceased. She starts with the conclusion and allows the judge to explain the sentence in understandable and non-legal language. Also, this exemplary verdict gives more attention and recognition to the relatives of the deceased and their experiences.

Publication details and further reading

Malsch, M. (2019). Hoe leg ik het uit aan de nabestaanden? Motiveringen van vrijspraken en straffen in dood-door-schuld zaken in het verkeer. [How do I explain it to the relatives of the deceased? Arguments for acquittal and sentencing in indirect cases of manslaughter due to a traffic accident] Tijdschrift voor Rechtspraak en Straftoemeting, nr. 1-2, 13-32.
Van der Maden, M., Malsch, M. & De Keijser, J.W. (2017). Waarom wil de burger toch steeds dat rechters zwaarder straf­fen? De invloed van opleiding en informatie, [Why does the citizen always want judges to impose severer sentences? The influence of educational level and information] Tijdschrift voor de Rechterlijke Macht, nr. 5, 180-183. (Dutch only)

About prof. dr. mr. Marijke Malsch


Marijke Malsch studied Social Sciences and Law at the University of Amsterdam. She received her doctor's degree on a dissertation entitled: Lawyers' predictions of judicial decisions: A study on calibration of experts. She is a senior researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR).
Her current research interests focus on participation of lay people in criminal justice systems in Europe, privacy of victims of crime, accuracy of reports of police interrogations, the principle of open justice, stalking legislation, and expert evidence in the criminal justice system. She is also working as an honorary judge at a District Court and a Court of Appeals. Malsch co-ordinates and teaches the course Law in Practice at VU University in Amsterdam.

Marijke is a member of the Sanctions Cluster and the Empirical Legal Studies Cluster.

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