Securing a fair trial through excluding evidence?
A comparative perspective.
Exclusionary rules are highly controversial in all criminal justice systems as they cut out possibly relevant evidence from fact-finding. Nevertheless, we find a wide-range of exclusionary rules in many legal systems. A comparative approach of selected European jurisdictions (Switzerland, Germany, UK) as well as the U.S. law and other Asian jurisdictions shall unveil the lawmaker’s reasoning behind the adoption of exclusionary rules.
Up to now, little is known of what the importance and what the impact of exclusionary rules in different criminal justice systems in fact is. The public interest to search for truth in a criminal investigation has led to procedural rules that expose suspects and witnesses to coercive measures that regularly interfere with individual rights in all criminal justice systems. The limits of such fact-finding differ between the national systems, with regard establishing valid proof or the acceptance of individual rights or the recognition of a private sphere or other.
Several cultural divides relating to limits of criminal investigation appear to be among countries that traditionally place a strong emphasis on confessions by defendants, those that are set for establishing evidence beyond a reasonable doubt by scientific evidence and those that grant certain individual rights to defendants. In recent years a global debate arose about the impact of individual rights in the context of fact finding in the criminal process. How does the presumption of innocence or the right to be free from physical force and torture, and not to be forced to incriminate oneself translate into procedural rules? It is these rights in particular that tend to inhibit the authorities’ quest for the truth.