Improperly Obtained Evidence in Anglo-American and Continental Law

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. Longlisted for the Inner Temple Book Prize 2022.

Table of Contents:
1. Introduction I. Four Comparative Law Pillars II. Linguistics III. Who Excludes? IV. At What Stage of the Process is Evidence Excluded? V. What Happens after Exclusion? VI. Organisation of the Book 2. Exclusionary Rules for Evidence Obtained in Violation of the Right to Privacy: Greece and the United States I. Prolegomena on the Link Between Constitutionalisation and Automatic Exclusionary Rules II. Reading the Exclusionary Rule into the Constitution III. Constitutional Exclusionary Rules IV. The Greek Exclusionary Rule for Evidence Obtained by the Commission of Criminal Offences V. Same Origins, Different Directions: The Deterrent and Protective Rationales in Action VI. Caveats VII. Concluding Thoughts VIII. Epilogue: Triggers for the Constitutionalisation of the Exclusionary Rule 3. Discretionary Exclusion of Evidence Obtained in Violation of the Right to Privacy: France and England and Wales I. General Principles and Legislative Framework II. Jurisprudential Applications: Admitting Evidence Obtained in Violation of the Right to Privacy III. Evidence Obtained Through the Bugging of Police Cells: French Lessons for England and Wales? IV. Concluding Thoughts 4. Improperly Obtained Confessional Evidence: Converging Rights-Based Approaches I. The Modern Metamorphoses of the French Nullités of the Garde à Vue: The Road to Automatic Nullities II. Automatic Nullities for Violations of Suspects' Rights in Greece III. 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 UK V. Concluding Thoughts 5. 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 Jurisprudence II. From Salduz's Exclusionary Rule to Common Custodial Interrogation Rights in Europe (Passing by the EU Procedural Rights Directives) III. Throwing Salduz 'Off the Rails'? IV. Concluding Thoughts 6. Reinvigorating the Rights Thesis I. Improperly Obtained Evidence and the Aims of the Criminal Process II. 'Excluding Evidence as Protecting Rights' Revisited III. Is There Support in Comparative Law for the Rights Thesis? IV. Concluding Thoughts 7. Epilogue: The Future

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.

Review :
A hugely significant contribution to, and indeed advancement of, scholarship on the ever-captivating issue of improperly obtained evidence, and indeed criminal procedure more broadly. This book provides a comparative analysis of the exclusion of improperly obtained evidence across a number of legal systems, criss-crossing jurisdictional boundaries in a lively and engaging manner … [Giannoulopoulos] should feel satisfied that the cosmopolitan legal thinking and comparative analysis in this book helps clear a way for the "constitutionalisation" of criminal evidence at some point in the future. [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. This impressively detailed and wide-ranging comparative study examines the restrictions that both common-law and civil-law systems place on evidence obtained through breaches of the rights of suspects … [Giannoulopoulos] has provided a valuable and fascinating account of the way courts and legislators have grappled with these issues in a wide range of jurisdictions. 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. 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. The book is a comparative tour de force on one of the most fundamental questions in criminal procedures across the globe. Drawing upon a thorough knowledge of both Continental and Anglo-American systems, the author offers new cross-cultural insights into the enduring debate on the admissibility of improperly acquired evidence. In times of rapid internationalization of criminal evidence this is an illuminating reading for practitioners and academics interested in fresh cosmopolitan insights in this area.