Evidential Remedies for Procedural Rights Violations

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The purpose of this paper is not to suggest that there are no differences between the different legal systems, but rather to argue that these differences are not necessarily accurately reflected in the accusatorial - inquisitorial typology. By engaging more with the realities of criminal process, it should be possible to overcome the traditional adherence to the exclusionary rules versus free proof dogma and provide new insights into comparative criminal evidence. These arguments will be illustrated with reference to the evidential consequences of a violation of the right to counsel in Switzerland. This chapter will draw from data collected in the course of a large empirical study of criminal trials, the Trial Observation Project, funded by the Swiss National Science Foundation. The study set out to document the nature of the implementation of trial rights in practice in order to challenge some of the principal assumptions underlying normative theorising on trial rights. The chapter will begin by challenging the assumption that the Swiss criminal procedure system, which clearly falls within the ‘continental European’ tradition, gives the fact-finder total freedom of proof in considering the evidence.