Improperly Obtained Evidence in Anglo-American and Continental Law - by Dimitrios Giannoulopoulos (Hardcover)

About the Book

"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"--

Book Synopsis

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-Á -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 Quotes

This book endorses an approach to the exclusion of improperly obtained evidence that prioritises the protection of fundamental rights. It is important that, once in a while, the European Court of Human Rights is reminded of its role as the "conscience of Europe+?; as done in this book elegantly by Giannoulopoulos with regards to evidence obtained in violation of the right to legal assistance. This thorough study and fascinating analysis is a must-read for legal scholars and practitioners, including judges, alike.

This book is a detailed and accessible contextual analysis of the diverging and converging approaches adopted towards the exclusion of improperly obtained evidence across the Anglo-American and continental European legal traditions, written by a scholar with considerable experience of legal practice in both traditions. With its main focus on the law of England and Wales, France, Greece and the United States, the book provides extensive cosmopolitan insight into the role of truth discovery and evidence admissibility in Anglo-American and Continental law and is a major contribution to the literature on cross-cultural studies of human rights and criminal justice.

This fascinating new book considers the endemic question of whether improperly obtained evidence should be excluded from criminal prosecutions. Giannoulopoulos takes a comparative approach, examining the issue in Anglo-American and Continental law jurisdictions. He finds convergences in nations with fundamentally different criminal justice systems, and he uncovers surprising divergences in nations with common legal cultures. Values and goals turn out to matter more than history and legal culture. This is an important book, which should be read by criminal justice and evidence scholars everywhere.

About the Author

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.