Abstract

This chapter describes practitioners’ understanding of excluding illegally obtained evidence. To gain deeper insight into the applicability of the exclusion of evidence obtained through illegal means and to evaluate regulations that have been implemented, fourteen experts from different legal professions (lawyers, judges, prosecutors) and countries (Germany, Singapore, Switzerland and Taiwan (ROC)) were interviewed about their experiences. All legal systems are faced with the use of illegally obtained evidence. Based on qualitatively analyzed data the frequency of the applicability of exclusionary rules, the types of cases in which they are seen, and experts’ attitudes towards the function of exclusionary rules are described. Violations of rules around the gathering of evidence is a highly sensitive topic, particularly as the state (represented by police officers and prosecutors) plays a central and powerful role. To find out if exclusionary rules do indeed result in a more impartial trial or if further protective measures are required, factors influencing the procurement of evidence and the decision-making process around the legality of such procurement were evaluated. Subsequently, difficulties that law enforcement agencies and criminal courts are faced with were outlined, with an emphasis on the application of the law and the limitations in safeguarding criminal investigations and proceedings. Concluding remarks highlight best practices in securing a fair trial as well as ancillary measures (including unwritten techniques) that may be utilized to optimize the utility of exclusionary rules.

Highlights

  • The categories and codes were developed on the basis of the theoretical framework and refer to the hypothesis that exclusionary rules secure a fair trial; this hypothesis was examined by several assumptions compiled from empirical and theoretical approaches

  • One expert added to the latter argument that exclusionary rules have a disciplining effect, as police are usually interested in excellent work

  • One judge dealing with serious cases in a Grand Criminal Chamber of a regional court guessed that exclusionary rules were discussed in three out of 15 cases (20%)

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Summary

Theory and Practice

The project “Securing a fair trial through excluding evidence? A comparative perspective” fulfills the need to determine features of the criminal process that are conducive to enhancing respect for human rights in different legal and cultural environments. The project “Securing a fair trial through excluding evidence? How do exclusionary rules function in legal practice? Does practitioners’ understanding of excluding illegally obtained evidences comply with the law? What are experts’ experiences concerning the applicability and frequency of exclusionary rules in criminal proceedings? Where do the experts identify gaps of protection, limitations of exclusionary rules and possible safeguards? Which potential alternatives and supplementary means of nudging law enforcement are identified? What ancillary measures ( not written ones) may be utilized to make exclusionary rules effective? To gain a deeper insight into the applicability of the exclusion of evidence obtained by illegal means and to evaluate implemented legal regulations, experts from different legal professions and countries were interviewed about their field experience How do exclusionary rules function in legal practice? Does practitioners’ understanding of excluding illegally obtained evidences comply with the law? What are experts’ experiences concerning the applicability and frequency of exclusionary rules in criminal proceedings? Are techniques of taking evidence that are forbidden really not used? How can violations be proved? Where do the experts identify gaps of protection, limitations of exclusionary rules and possible safeguards? Which potential alternatives and supplementary means of nudging law enforcement are identified? What ancillary measures ( not written ones) may be utilized to make exclusionary rules effective? To gain a deeper insight into the applicability of the exclusion of evidence obtained by illegal means and to evaluate implemented legal regulations, experts from different legal professions and countries were interviewed about their field experience

Data Collection and Analysis
Collection of Data
Data Analysis
Theoretical Considerations
Legal Rules in Practice
Function of Exclusionary Rules
Frequency of Exclusionary Rules in Practice
Kind of Exclusionary Rules in Practice
Difficulties in Applying the Law
Subjective Assessments and Balancing Process
Credibility and Proof of Violations of Rules
Extend of Protection
Knowledge of the Excluded Evidence
Responsibilities and Control
Compliance with Rules to Obtain Evidence
Motivation of Norm Compliance and Awareness of Illegally Obtained Evidence
Protective Measure to Safeguard the Legal Obtainment of Evidence
Legal Consequences for Police Officers
Legal Consequences for the Affected Person
Control Measures
Practical Measures and Incentives
Training of Police Officers and Communication
Findings
Conclusion

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