Improperly Obtained Evidence in Anglo-American and Continental Law

Dimitrios Giannoulopoulos

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509945320
• eBook ISBN: 9781509923250
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This is the first book to offer an extensive cosmopolitan, cross-cultural insight into the perennial controversy over the use of improperly obtained evidence in criminal trials. It challenges the conventional view that exclusionary rules are idiosyncratic of Anglo-American law, and highlights the 'constitutionalisation' and 'internationalisation' of criminal evidence and procedure as a cause of rapprochement (or divergence) beyond the Anglo-American and Continental law divide. Analysis focuses on confessional evidence and evidence obtained by search and seizure, telephone interceptions and other means of electronic surveillance. The laws of England and Wales, France, Greece and the United States are systematically compared and contrasted throughout this study, but, where appropriate, analysis extends to other Anglo-American and Continental legal systems. The book reviews exclusionary rules vis-à-vis the operation of judicial discretion, and explores the normative justifications that underpin them. It attempts to reinvigorate the idea of excluding evidence to protect constitutional or human rights (the rights thesis), arguing that there is significant scope for Anglo-American and Continental legal systems to place a renewed emphasis on it, particularly in relation to confessional evidence obtained in violation of custodial interrogation rights; we can locate an emerging rapprochement, and unique potential for European Court of Human Rights jurisprudence to build consensus in this respect. In marked contrast, remaining divergence with regard to evidence obtained by privacy violations means there is little momentum to adopt a reinvigorated rights thesis more widely. Longlisted for the Inner Temple Book Prize 2022.

1

Introduction

Whether improperly obtained evidence should be used in criminal trials has proven to be one of the most tortuous, convoluted and perennial questions of criminal evidence and procedure across the Anglo-American and Continental legal cultures and beyond.¹ Whereas a number of legal systems have quickly drawn the link between the unlawful, unconstitutional or unfair obtaining of criminal evidence and their use in court, other legal systems have isolated the criminal trial from irregularities taking place at the pre-trial stage and often implicitly taken the approach that the exclusion of improperly, but reliable, evidence is a counter-intuitive process, and that the public interest in the investigation of the crime reigns supreme, even where constitutional or human rights have been breached. The ideological dichotomies caused by the improperly obtained evidence debate within these legal systems have been no less noteworthy,² and the supreme and cassation court judgments generating them have been replete with symbolism, extending far beyond the technical question of whether the fact-finder should be barred from accessing tainted information. Several major constitutional law and human rights ‘landmarks’ can be located within the relevant jurisprudence.³

From this angle, it can be argued that there has long existed significant scope for cross-cultural dialogue in this area, as a means to investigate approaches to improperly obtained evidence presenting alternative solutions to those adopted by domestic law. But legal systems have taken a predominantly unilateralist approach here, paying little attention to exclusionary rule developments happening outside their domestic jurisdiction, even where these were occurring within the same family of law,⁴ let alone where these could only be observed within a foreign legal culture.⁵ The accessibility of foreign sources, and the linguistic and conceptual obstacles intrinsic in the comparative study of law, may to some extent provide an explanation for this state of affairs, though it will be far less convincing an explanation today than it would have been 20 or 30 years ago, for instance, considering the rapid growth of technology in legal research and the explosion of cosmopolitan legal studies. It seems more plausible to suggest that misconceptions about the origins of the exclusionary rule, and its relationship with Anglo-American and Continental law, may have blocked wider cross-cultural interactions in this domain. A view of the exclusionary rule as idiosyncratic of Anglo-American law,⁶ coupled with an exaggerated understanding of the central role that free proof plays in Continental law, may therefore account for a lack of interest towards solutions offered by Continental legal systems. Conversely, glossing the exclusionary rule as part and parcel of the adversarial tradition may be discouraging Continental observers, versed in the inquisitorial tradition, from concentrating upon the simultaneous development of the exclusionary rule as a constitutional and human rights doctrine (and, ultimately, from identifying important similarities with Continental constitutional and human rights law). Similarly, if Continental observers continue, erroneously, to view the common law as revolving predominantly around exclusionary rules, leaving no room for the deployment of free proof, it is likely that they will be equally discouraged from investigating potential rapprochement with the common law with regards to the latter.⁷ Coupled with the above, the normative question arises of whether, in establishing the principles relating to the law of improperly obtained evidence, primacy should be given to the objectives and values central in domestic law – the domestic legal, social and political environment more generally – or whether the legislator and domestic courts should also be taking into account shared values within a particular legal culture or across legal cultures, or consider universal values entrenched in international human rights law.⁸ Depending on how a legal system answers this question can influence how quick its reflexes might be to future developments in comparative law, and if it is going to take an interest in them in the first place. We must note, in this regard, that the desire to protect legal culture from external influences is perhaps nowhere demonstrated with more force than in the area of criminal evidence and procedure,⁹ and that this may therefore provide an additional explanation of a certain myopic view of domestic jurisdictions as far as the comparative dimensions of improperly obtained evidence are concerned.

By undertaking detailed analysis of the exclusion of improperly obtained evidence across the Anglo-American and Continental legal traditions, this book aims to fill the gaps identified above. Through the adoption of a cosmopolitan approach to improperly obtained evidence, it will attempt to tackle misconceptions about the role of truth discovery and evidence admissibility in Anglo-American and Continental law. This approach takes as its point of departure the development of the law of improperly obtained evidence within the domestic legal and socio-political environment. But it goes further than that to pinpoint new vistas of possibility for cosmopolitan legal thinking when addressing one of the most enduring enigmas of comparative criminal evidence and procedure.

I.Four Comparative Law Pillars

The book relies on four comparative law pillars with the aim of constructing a bridge that will enhance communication and mutual understanding between Anglo-American and Continental law solutions on improperly obtained evidence. The exclusionary systems of England and Wales, France, Greece and the United States present the observer with fascinating synergies and divergence that go beyond the conventional Anglo-American and Continental law divide. These come to the surface primarily when evidence obtained in violation of the right to privacy is in question; as it will also be argued, there is a wider, emerging, rapprochement around self-incriminating evidence obtained in violation of custodial interrogation rights. All this will be analytically explored in chapters two and three, on the exclusion of evidence obtained in violation of the right to privacy, and chapter four, on the exclusion of confessional evidence. It can still be briefly explained here that, faced with violations of the human right to privacy, English and French law adopt converging, non-automatic, discretionary, solutions, on the one hand, and that Greece and the United States opt for automatic exclusionary rules, on the other. We are, in other words, presented with converging solutions that traverse the Anglo-American and Continental legal cultures, and diverging approaches taken within legal systems belonging to the same legal culture. This provides an interesting point of departure when seeking to place new emphasis on the cross-cultural study of the law of improperly obtained evidence. The argument can be reinforced if one looks at the vastly different procedural frameworks that set the United States and Greece apart, or the diverging legal histories, legal culture and institutions that differentiate France to England and Wales.

On this point, we may observe, for starters, that first acquaintance with the idea of undertaking a full-blown comparison between the United States and Greece will probably puzzle comparative law experts conscious of the substantial socio-political, cultural, institutional and economic gap that separates the two countries, the different composition of their populations, the infinite geographical disparities and diametrically opposed geopolitical roles or, perhaps more importantly, their serious differences in terms of incarceration and criminality rates and the nature of such criminality. But, from this angle, the United States will probably be viewed as exceptional in comparison to most, if not all, countries in the Western world anyway.¹⁰ In fact, the rising criminality and harsher law enforcement policies that have resulted from the current socio-economic crisis in Greece¹¹ lend themselves to a quite timely comparison with the United States, given the high crime rates and law and order policies that are characteristic of the American criminal justice system.

A comparison between England and France will be much more in tune with conventional comparative law practice. The contrasting procedural traditions of common law adversarialism and Continental inquisitorialism that they have respectively long embedded are still leaving their mark on the two sides of the Channel.¹² It suffices to take note of the vastly different organisation of the police and the prosecution service, the antithesis between reliance on professional magistrates in France and lay justice in England and Wales or the divergent roles of the defendant, the victim, prosecutors and judges in the criminal process, in which there is an opportunity to participate to markedly variant degrees.¹³ Equally notable are disparities as to the parties’ access to criminal evidence, such as those encapsulated in the comparison between continuous access to the case file – the ‘dossier’ – in France and the arguably more limited access through ‘disclosure’ in England and Wales.¹⁴ Differences as to codification of the law,¹⁵ the role of legislation and jurisprudence, and ensuing variations as to how actively judges seek to develop the law,¹⁶ or discrepancies concerning the status of judges, law professionals and academics,¹⁷ play no less an important role in England and France continuing to take different directions in the organisation of their criminal processes. All these differences exist despite the fact that important convergence mechanisms have long been in action, especially in the European Union and in international criminal tribunals, and are now pushing the common law and Continental law traditions closer together.¹⁸ But, on the other hand, persisting idiosyncrasies should not obstruct one’s view of the modern transformations of English and French criminal justice, which have as a consequence that systemic differences in the two legal systems are beginning to lose their explanatory force.¹⁹ It may be a dangerous, stereotypical, oversimplification to emphasise the divergent attitudes of England and France, while losing sight of contemporary reform that may indicate gradual convergence.

II.Linguistics

The fact that the book seeks to amalgamate normative analysis, legislation and jurisprudence from a range of legal systems across the Anglo-American and Continental legal cultures gives rise to an interesting, preliminary, linguistic issue. Whereas in the common law we speak of the ‘exclusion’ of improperly obtained evidence, the focus, in Continental law, is on the procedural act that may have enabled the improper obtaining of the evidence. Most Continental European legal systems use the term ‘nullity’ to denote the procedural sanction that applies to acts that are devoid of validity,²⁰ acts that are ‘null and void’, where they have been performed in breach of relevant procedural standards. We also come across the concept of ‘evidentiary prohibitions’, the Beweisverbote of German law, or non-usability, the inutilizzabilità of Italian law. We are therefore confronted with a linguistic plurality that may initially confuse the comparative observer.

Now, where a nullity has been pronounced, the act does not produce its legal effects. Where the police have undertaken a search of premises or questioned the suspect, for instance, in violation of the relevant provisions in the Code of penal procedure, a nullity will be pronounced and the act will not produce the legal effect of the discovery of evidence or the obtaining of self-incriminating statements respectively. In practical terms, this often means that the evidence obtained through an invalidated procedural act must be removed from the investigation dossier. This is not always the case, as a pre-trial procedural act may also be invalidated by the trial judge, who is also the fact-finder in the continental tradition and will necessarily become aware of its content; the evidence is still excluded from the consideration of the fact-finder, and the court ...

Table of contents

• Cover
• Dedication
• Title Page
• Preface
• Table of Contents
• Table of Cases
• Table of Legislation
• 1. Introduction
• 2. Exclusionary Rules for Evidence Obtained in Violation of the Right to Privacy: Greece and the United States
• 3. Discretionary Exclusion of Evidence Obtained in Violation of the Right to Privacy: France and England and Wales
• 4. Improperly Obtained Confessional Evidence: Converging Rights-Based Approaches
• 5. Confessional Evidence and European Court of Human Rights Jurisprudence: Building Rights-based Consensus or Backtracking on Rights Protection?
• 6. Reinvigorating the Rights Thesis
• 7. Epilogue: The Future
• Bibliography
• Index
• Copyright Page