Do Exclusionary Rules Ensure a Fair Trial?

Sabine Gleß ,Thomas Richter

doi:10.1007/978-3-030-12520-2

Abstract

This open access publication discusses exclusionary rules in different criminal justice systems. It is based on the findings of a research project in comparative law with a focus on the question of whether or not a fair trial can be secured through evidence exclusion. Part I explains the legal framework in which exclusionary rules function in six legal systems: Germany, Switzerland, People's Republic of China, Taiwan, Singapore, and the United States. Part II is dedicated to selected issues identified as crucial for the assessment of exclusionary rules. These chapters highlight the delicate balance of interests required in the exclusion of potentially relevant information from a criminal trial and discusses possible approaches to alleviate the legal hurdles involved.

Highlights

Sabine Gless and Thomas Richter AbstractCriminal justice systems are barometers of social development
Based on the hypothesis that excluding unlawfully obtained evidence is an effective tool for safeguarding human rights in criminal proceedings, the core question of this comparative project is twofold: How can criminal procedure law ensure respect for human rights and what role does the exclusion of illegally obtained evidence play in this regard? In order to answer this question in a global context, we investigated three European jurisdictions (Switzerland, Germany, England), three Asian jurisdictions (People’s Republic of China [PRC], Taiwan/Republic of China [ROC], Singapore), and the United States
Speaking, the Swiss statutes face several hurdles impairing the efficiency of exclusionary rules in the Swiss criminal justice system

Summary

Introduction

Sabine Gless and Thomas Richter AbstractCriminal justice systems are barometers of social development. The ECtHR, which is an international court established to hear applications alleging violations of the Convention, has repeatedly held that article 6 ‘does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law.’ In determining whether there has been a violation of article 6, the ECtHR will consider ‘whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.’ The use or admission of unlawfully obtained evidence in a particular case may render the proceedings unfair as a whole.4 It is in this indirect way—in the context of deciding whether, in the case at hand, there has been a breach of the right to a fair trial in article 6—that the issue of unlawfully obtained evidence has received attention by the ECtHR.. If the evidence is admissible as a matter of law, the party may seek to adduce it at the trial; but this does not mean that the court must admit the evidence At this point, a second issue arises: the court may sometimes exclude wrongfully obtained evidence even though it is technically admissible. First, the extent to which wrongfulness in the means by which evidence was obtained affects its admissibility and, secondly, the discretion to exclude admissible evidence that has been wrongfully obtained

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