Suchergebnisse

This book is a comparative study of the exclusion of illegally gathered evidence in the criminal trial , which includes 15 country studies, a chapter on the European Court of Human Rights, and a comparative synthetic conclusion. No other book has undertaken such a broad comparative study of exclusionary rules, which have now become a world-wide phenomenon. The topic is one of the most controversial in criminal procedure law, because it reveals a constant tension between the criminal court's duty to ascertain the truth, on the one hand, and its duty to uphold important constitutional rights on the other, most importantly, the privilege against self-incrimination and the right to privacy in one's home and one's private communications. The chapters were contributed by noted world experts on the subject for the XVIII Congress of the International Academy of Comparative Law in Washington in July 2010.

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks on 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection differs, depending on whether the target of the investigative measure is a US-, or non US-citizen, or whether the investigating officials are part of the criminal justice apparatus or belong to the military or the intelligence community. Finally, the chapter explores the admissibility of evidence gathered in the same areas depending on whether it is used in the normal civilian criminal courts, or in the newly constituted military commissions instituted for trial of foreigners accused of international terrorism.

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection differs, depending on whether the target of the investigative measure in the US, or a non US citizen, or whether the investigating officials are part of the criminal justice apparatus or belong to the military or the intelligence community. Finally, the chapter explores the admissibility of evidence gathered in the same areas, depending on whether it is used in the normal civilian criminal courts, or in the newly constituted military commissions instituted for trial of foreigners accused of international terrorism.

This article explores the tension in modern criminal procedure between the goal of ascertaining the material truth of the criminal charge and the respect for important human rights of criminal suspects during the investigation of the alleged criminal responsibility. It examines two major areas where police run the risk of violating and often do violate the constitutional rights of criminal suspects during interrogations and during invasions of privacy in the form of dwelling searches and interception of confidential communications. The approaches of modern democracies to this dilemma run from the strict exclusion of all direct and indirect evidence (fruits of the poisonous tree), whenever a substantial constitution right is violated, to a discretionary approach, which balances various factors, including the need to ascertain the truth before deciding whether to use the evidence. The ambition of the article is to draw clear lines between when courts should exclude evidence and when discretion can reign.

A new adversary system of jury trial was introduced in 1993-1994, and the rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. The new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004. This chapter explores the extent to which the Russian jury system and adversary procedure have humanized criminal procedure, and concludes that the ambitious reforms look more and more like democratic window-dressing for a system that is continuing to function as it did in Soviet times. This chapter also suggests some reforms that could save the institution from becoming a cynical "decoration" of an otherwise authoritarian Soviet-style criminal justice system.

Sidney Lumet's 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, and the current revival of 12 Angry Men on stage and screen in Russia and the former Soviet Republics. It also discusses the film itself in relation to Russian jury trial procedure, and whether such a scenario could happen in contemporary Russia.