CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 7, 2019

Boyne on The Exclusionary Rule in Germany and the US

Shawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted Truth or Justice: A Comparative Look at the Exclusionary Rule in Germany and the United States on SSRN. Here is the abstract:
Procedural rules and case law play a key role in shaping the fact-finder’s ability to “find the truth” in both Germany and the United States. In the United States, in the absence of comprehensive codes of criminal procedure, the judiciary’s shifting interpretations affect the exclusionary rule’s scope forcing prosecutors to use the pre-trial process to determine “whether the logically relevant information [they have] gathered will successfully undergo the legal metamorphosis into technically competent evidence.” In both countries, the willingness of courts to impose those rules or to reshape the contours of past case law in a manner that may or may not exclude evidence shifts over time. At this moment in history, we are witnessing competing trends regarding the exclusion of evidence in Germany and in the United States. Although courts in the United States, in particular the Supreme Court, have recently been more willing to narrow the use of the exclusionary rule, the decisions of German courts are trending in favor of placing more safeguards on the legislature’s efforts to expand police powers.
Many scholars have highlighted the differences in the scope and application of both country’s exclusionary rules. While I summarize this prior scholarship and key court decisions in Parts I and II of this article, in Part III, I explore how these different normative underpinnings fare in a world of rapid technological developments. Further, I probe how the differing legal conceptions of privacy, autonomy, and dignity mediate the relationship between the democratic state and the concept of the individual and ask whether the structure of evidentiary protections in both countries prepare us for the decades ahead.

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