Truth or Due Process? The Use of Illegally Gathered Evidence in Criminal Trials - Germany

Abstract

Theories of admissibility of evidence provide insights into concepts that ensure the reconstruction of facts, reliability of proof, fair trial and respect for individual rights in a nutshell. In the German criminal justice system different frameworks form a rather complex system for monitoring the use of illegally gathered evidence. Overall, however, two issues constantly occur: (a) references to the adherence to the rule of law, which mingle with a more modern concept of “fair trial,” and (b) growing emphasis on the protection of the individual’s right to privacy – may it concern a suspect, a victim or a witness. The paper discusses the relevant constitutional and statutory rules as well as legal doctrine and case law, marking the tension between the duty to determine the truth and exclusionary rules. During the last two decades, new, especially covert methods of information gathering were established that challenge traditional concepts, such as the defendant’s rights and potential consequences for the exclusion of evidence. This requires new solutions for balancing the right to privacy, principles of fair trial and law enforcement tasks.