Improperly Obtained Evidence in Anglo-American and Continental Law
Author(s): Dimitrios Giannoulopoulos
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.
Review(s):
“[T]his is a thoroughly researched and comprehensively argued text. Giannoulopoulos impresses as a genuine authority in his area of expertise while showing a modest deference to experts that have come before him... Looking beyond terminological and conceptual differences between [the Anglo-American and Continental] legal traditions, one of the book's goals and distinguishing features is to 'highlight the “constitutionalisation” and “internationalisation” of criminal evidence and procedure as a cause of rapprochement (or divergence) beyond the Anglo-American and Continental law divide... While Giannoulopoulos demonstrates the tangible influence of human rights jurisprudence on the 'exclusionary rule debate', he is cognisant of the 'range of countervailing factors' with the capacity to offset the impact of the rights thesis... Giannoulopoulos calls on procedural scholars to help fill the gaps in comparative and cosmopolitan legal thinking. This book is testament to the fact that he has gone a significant distance in this direction himself.” —Modern Law Review
ISBN: 9781849463829