Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules

Thaman, Stephen C.

doi:10.1007/978-94-007-5348-8_17

Cited by 5 publications

(3 citation statements)

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“…Much has been written in the literature about this classic controversy: see among others, Choo (1993) 19; Mirfield (1996: 554); Panzavolta (2012); Thaman (2010: 333). See also, for a comparative account, Thaman (2013).…”

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Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

Panzavolta

Maes

2022

The International Journal of Evidence & Proof

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The article discusses the rationales for excluding illegally obtained evidence in criminal cases starting from two recent judgments of the European Court of Justice on mass data collection. The two decisions concern the exclusion of evidence obtained as a result of the retention of metadata in breach of EU law. According to the ECJ, exclusion may be justified by on the basis of the principle of effectiveness and the consequent need to protect the suspects’ rights (protective principle). Based on its analysis of these recent cases, the article demonstrates how important the choice of a rationale for excluding evidence is. It discusses the different exclusionary principles that could be adopted and illustrates their practical implications. Finally, the article advances a proposal of a cascade system of principles for exclusion of evidence in the context of criminal proceedings in Europe.

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“… 2. For comparative studies on this topic see e.g. Bradley (2001: 375); Dawson (1982: 513); Giannoulopolous (2019); Gless and Richter (2019); Ma (1999: 280); Meese (2017); Ryan (2014); Slobogin (2016); Thaman (2010: 333, 2013); Thaman and Brodowski (2020).…”

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Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

Panzavolta

Maes

2022

The International Journal of Evidence & Proof

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“…Additionally, under s. 78 PACE, the court has discretionary power to exclude any prosecution evidence where, having regard to the circumstances in which the evidence was obtained, the admission of the evidence would have an adverse effect on the fairness of the trial. 15 Thaman, 2013;Jackson/Summers, 2012. 16 See He/He, 2013 at 73 et seq.…”

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Introduction

Gless¹,

Richter²

2019

Ius Gentium: Comparative Perspectives on Law and Justice

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Criminal justice systems are barometers of social development. This claim, put forward by German criminal law scholars, alludes to the fact that inherent in the criminal justice process are conflicting interests between the need to ensure comprehensive fact-finding on the one hand, and the wish to safeguard individual rights, especially those of defendants, on the other hand. In all criminal justice systems, there exists a strong public interest in determining the truth due to the assertion that a determination of innocence or guilt is based upon "true" facts. This pursuit of "the truth" has led to procedural rules that expose both suspects and witnesses to coercive measures that often interfere with individual rights.In recent decades, human rights have come to the forefront in criminal justice systems around the world, but at the same time more and more jurisdictions have adopted exclusionary rules. Country reports on Germany, Switzerland, P.R. China, Taiwan, Singapore, and the U.S., along with contributions discussing the rationales behind exclusionary rules, legal practices, or potential alternatives, all address the question of whether, and under what circumstances, the use of exclusionary rules can be an effective means for protecting human rights in criminal proceedings.

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The Purposes and Functions of Exclusionary Rules: A Comparative Overview

Turner¹,

Weigend

2019

Ius Gentium: Comparative Perspectives on Law and Justice

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The chapter analyzes the rationales for excluding relevant evidence with the aim of establishing the ideal type of exclusion system for each rationale. The authors then review to what extent individual legal systems have actually altered their legal rules in accordance with these ideal systems. An investigation into whether or not there are any consistent relationships between the ideal systems and proclaimed rationales is conducted. The structure of various exclusionary rules is also explored, as are other factors that may influence the law and practical application of such rules.

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Balancing Truth Against Human Rights: A Theory of Modern Exclusionary Rules

Cited by 5 publications

References 5 publications

Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

Exclusion of evidence in times of mass surveillance. In search of a principled approach to exclusion of illegally obtained evidence in criminal cases in the European Union

Introduction

The Purposes and Functions of Exclusionary Rules: A Comparative Overview

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