Reactions to Expert-Witness Statements
In his statements of defense, Van L. attempts to refute the conclusion of the expert witnesses regarding the artworks involved in the proceedings. He especially focuses on two things: inconsistencies and lacking argumentation. Van L. states that many conclusions and statements by the expert witnesses are lacking in argumentation, and he is right. The expert witnesses state that various stylistic elements of the Plough painters cannot be found in the disputed works. These statements are not – or minimally – substantiated or further elaborated on, and are often accompanied only by the statement: “Altink/Dijkstra wouldn’t have painted it that way”. Van L., on the other hand, has done extensive comparative research. Each statement with regards to the style of The Plough he refutes with photographs of and literature on authentic The Plough artworks. Although his conclusions are somewhat overstated, and the comparisons slightly chaotic, his conclusions are better substantiated than those of the expert witnesses.
On top of this, Van L. identifies inconsistencies and untruths in the statements of the expert witnesses. The most common inconsistency he identifies is that, on several occasions, expert witnesses have stated that they haven’t seen a particular work before, even though documentation shows they have. Van L. uses Johan Meijering’s research report, tv-recordings, and news articles to prove that the expert witnesses have in fact seen the works before. Furthermore, he identifies the inconsistency of the expert witnesses by pointing out that the expert witnesses used two to three different titles for each of the disputed works. These inconsistencies might seem trivial, but they have serious consequences for the credibility of the expert witnesses. As a result of the minimal argumentation with regards to their statements, the court already found it had difficult to determine the credibility of the expert witnesses. This only became more difficult as a result of the little mistakes and inconsistencies Van L. pointed out. How can a court accept a statement on the authenticity of a disputed work if details like these are flawed? It’s not just small mistakes that the expert witnesses make, however. In one of his statements Han Steenbruggen suggests that Jan Wiegers never worked on board. This is in fact not true: there are several works by Wiegers known to be painted on board. Van L. points out this grave mistake and refutes the statement with witness statements from two conservators as well as literature references.
A last strong point that Van L. brings forward is the lack of expertise and accreditation of the expert witnesses. Especially with C. Buijsert he focusses on the lack hereof. He states – again with good reason – that Buijsert has no qualifications with regards to The Plough. Buijsert is a registered appraiser but has no references qualifying him to judge the authenticity of The Plough works. Van L. is, in fact, correct in objecting to Buijsert being an expert witness.
In his statements of defense, Van L. logically only focusses on the technical examination. On the scientific research (See Authenticity Research) done by Atelier voor Restauratie & Research van Schilderijen (A.R.R.S.) he only reacts with two pages. It is remarkable that he barely reacts to the research that led to the classification of two works being definitively false, especially seeing his extensive reactions to the other expert witnesses. Most likely he couldn’t find a weakness or mistake in the report and therefore decided to ignore it. This assumption is further strengthed by Van L.’s declination of contra-expertise.
During the proceedings, Van L. on many occasions references the Dutch Forensic Institute (NFI) report of 12 December 1992. This report contains the material analysis that was done by the NFI in the criminal case against Van L. (See Altink I). The research focused on the fibers in the disputed works and concluded that there were no anachronisms to be found. Van L. uses this report on several occasions in his statements of defense as proof of the disputed works being authentic. Although Van L. cites passages from the report, he did not release the entire report until the damages-proceedings of 15 November 2017.
Throughout the entire proceedings, he has used this report to support his case, but he only released the report in its entirety recently. This is most likely the consequence of the fact that the report doesn’t actually say much. It states that no anachronisms were found, but it doesn’t conclude that the works are authentic, as that wasn’t the goal of the research. Even so, Van L. tries to use the report as a declaration of authenticity.
Van L.’s main goal in using this report is to create confusion, as can be seen in ‘Van L. Statement of Defence: Johan van den Hende’ on pages 130-132. According to the NFI-report, acryl-fiber was found in the examined works, while the A.R.R.S.-research doesn’t mention this acryl-fiber. Van L. sees this as proof of mistakes made in the A.R.R.S.-research, but it actually has a simple explanation: the A.R.R.S.-research focused on the mixing technique. Acryl-fiber can be found in carriers or binders, but those weren’t part of the research done by A.R.R.S. By submitting the NFI-report with the mention of acryl-fibers, Van L. tries to redirect the attention away from the actual content of it. That Van L. didn’t want the full contents of this report to be revealed during the proceedings at the Court of Appeal also shows in the fact that Van L. denied the opportunity offered by A.R.R.S. to redo the XRF-research with the NFI present. If Van L. would have agreed, it would have become immediately clear that the report, in fact, states very little.
Lastly, it needs to be remarked that the Court of Appeal could have requested from Van L. to release the report sooner. Article 21 of the Dutch Civil Procedure Code (Rv) states that parties are obliged to state facts to their full and true potential. If parties don’t meet these requirements, the judge can draw his conclusions accordingly. In practice, this allows the judge to dismiss any facts that he suspects are incomplete or untruthful. In more severe cases the judge can order a reversal of the burden of proof. The Court of Appeal should have used this option with regards to the submitted NFI-report by Van L. The partial disclosure should have had its consequences.
The conclusion with regards to the statements of defense is that Van L. was able to successfully undermine the credibility of the expert witnesses. This is a result of his own extensive research, as well as the severe lack of depth with regards to the conclusions from the expert witnesses. The convincing research done by A.R.R.S., however, he wasn’t able to refute. Furthermore, he has withheld the report of the NFI, of which we now know that it doesn’t state anything substantial. As a result of the incompetence of most expert witnesses, Van L. Almost got away unscathed again, even though one decent research managed to debunk his case at one fell swoop.
- Material analysis Dutch Criminal Forensic Institute (12-12-1992)
- Van L. Statement of Defence: C. Buijsert (2007)
- Van L. Statement of Defence: Auke van der Werff (13-09-2011)
- Van L. Statement of Defence: Renée Smithuis (13-09-2011)
- Van L. Statement of Defence: Han Steenbruggen (13-09-2011)
- Van L. Statement of Defence: Johan van den Hende (13-09-2011)
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