This chapter explores whether exclusionary rules serve as efficient tools to streamline criminal procedure in a way that safeguards the rights of an accused or whether they exist merely as law on the books with limited actual utility. Relevant benchmarks for the evaluation of exclusionary rules are discussed, in addition to their structure. The question of which characteristics of exclusionary rules optimize the protection of procedural rights is analyzed along with other options to prevent violations. Possible alternatives to exclusionary rules are suggested to help answer the question: Is it time for a change? 1 Exclusionary Rules-Efficient Tools or Illusory Giants (紙老虎)? Exclusionary rules have long been a topic of interest for legal scholars and the subject of comprehensive study in law journals and textbooks. 1 The concept originated in common law and was later adopted by civil law and so-called mixed systems and, most recently, in China. 2 In the Western world, exclusionary rules are featured in flashy criminal cases, detective novels, and movies.
Swiss criminal procedure has a strong inquisitorial tradition and its primary purpose is the search for the "material truth." However, authorities are neither obliged nor allowed to search for this truth at any cost and are limited by procedural rules, which also serve to protect a defendant from the authorities. One possible means of enforcing such procedural rules is the exclusion of improperly obtained evidence. In Switzerland, the legislature established explicit provisions around the collection of evidence and its admissibility in criminal proceedings by adopting art. 139-141 of the Criminal Procedure Code in 2011. This is a comprehensive statutory regulation that is unique in Europe. Nevertheless, the Swiss Supreme Court continues to find ways to preserve its own power over the admission of evidence and often errs on the side of admitting evidence. With a focus on this tension between the legal framework and the jurisprudence of the Supreme Court, the Swiss country report describes the relevant legal framework, phases of the criminal process, and the relevant parties to criminal proceedings. Also discussed in detail are the current regulations as well as the Supreme Court's case law on exclusionary rules. An assessment of the potential for such rules to safeguard individual rights and prevent improper evidence acquisition is a focus of the paper.
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