Improperly Obtained Evidence in Anglo-American and Continental Law

Dimitrios Giannoulopoulos is the Inaugural Professor of Law at Goldsmiths, University of London, and an Associate Academic Fellow of the Honourable Society of the Inner Temple.

"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 law 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, including Australia, Belgium, Canada, Germany, Ireland, Portugal and international criminal courts. The book reviews exclusionary rules vis-a-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 ECHR jurisprudence to build consensus, in this respect. In marked contrast, remaining divergence with regards to evidence obtained by privacy violations means there is little momentum to adopt a reinvigorated rights thesis more widely"--

1. IntroductionI. Four Comparative Law PillarsII. LinguisticsIII. Who Excludes?IV. At What Stage of the Process is Evidence Excluded?V. What Happens after Exclusion?VI. Organisation of the Book2. Exclusionary Rules for Evidence Obtained in Violation of the Right to Privacy: Greece and the United StatesI. Prolegomena on the Link Between Constitutionalisation and Automatic Exclusionary RulesII. Reading the Exclusionary Rule into the ConstitutionIII. Constitutional Exclusionary RulesIV. The Greek Exclusionary Rule for Evidence Obtained by the Commission of Criminal OffencesV. Same Origins, Different Directions: The Deterrent and Protective Rationales in ActionVI. CaveatsVII. Concluding ThoughtsVIII. Epilogue: Triggers for the Constitutionalisation of the Exclusionary Rule3. Discretionary Exclusion of Evidence Obtained in Violation of the Right to Privacy: France and England and WalesI. General Principles and Legislative FrameworkII. Jurisprudential Applications: Admitting Evidence Obtained in Violation of the Right to PrivacyIII. Evidence Obtained Through the Bugging of Police Cells: French Lessons for England and Wales?IV. Concluding Thoughts4. Improperly Obtained Confessional Evidence: Converging Rights-Based ApproachesI. The Modern Metamorphoses of the French Nullités of the Garde à Vue: The Road to Automatic NullitiesII. Automatic Nullities for Violations of Suspects' Rights in GreeceIII. Miranda v Arizona: The Exclusionary Rule in Fast Decline (but Exclusion is Still Automatic)IV. Confessional Evidence, Reliability and Suspects' Rights: A Mixed Picture in the UKV. Concluding Thoughts5. Confessional Evidence and European Court of Human Rights Jurisprudence: Building Rights-based Consensus or Backtracking on Rights Protection?I. The European Court of Human Rights' Miranda Moment: The Salduz JurisprudenceII. From Salduz's Exclusionary Rule to Common Custodial Interrogation Rights in Europe (Passing by the EUProcedural Rights Directives)III. Throwing Salduz 'Off the Rails'?IV. Concluding Thoughts6. Reinvigorating the Rights ThesisI. Improperly Obtained Evidence and the Aims of the Criminal ProcessII. 'Excluding Evidence as Protecting Rights' RevisitedIII. Is There Support in Comparative Law for the Rights Thesis?IV. Concluding Thoughts7. Epilogue: The Future