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19 Colum. J. Eur. L. 21 (2012-2013)
The Cloak of the Law and Fruits Falling from the Poisonous Tree: A European Perspective on the Exclusionary Rule in the Gafgen Case

handle is hein.journals/coljeul19 and id is 27 raw text is: THE CLOAK OF THE LAW-AND FRUITS FALLING FROM THE POISONOUS TREE: A EUROPEAN PERSPECTIVE ON THE EXCLUSIONARY RULE IN THE GAFGEN CASE Stefano Maffei* David Sonenshein* This article revisits the controversial question of whether evidence found in breach of fundamental constitutional rights may be used against the defendant in a criminal case, and it compares the current European perspective on the exclusionary rule with certain features of the corresponding American rule, in its current interpretation by the Supreme Court. In Europe, this issue has sparked recent debate at supranational levels, following the ruling in Gifgen v. Germany, a leading case of the European Court of Human Rights. The case presented domestic courts and the European Court with the unavoidable alternative of either ensuring fairness toward the defendant in a murder case by excluding the fruits of his coerced confession, or the pursuit of the truth, which promoters of crime control worship as the prime objective of criminal adjudication. This article reviews the GAfgen ruling and the related dissenting opinion, with a view to casting light on whether police brutality might, occasionally be afforded the cloak of the law. It argues that unless a bright-line rule of exclusion is developed, the decision on the admissibility of the product of illegal police activity eventually follows a balancing of the totality of circumstances, which in turn nearly always translates in the admissibility of the physical evidence of unconstitutional conduct. This Article concludes that the European Court is reluctant to be too far ahead of the domestic law of the signatory states so as to maintain its political legitimacy. Stefano Maffei (D.Phil. Oxon) is a Lecturer in Criminal Procedure at the University of Parma, Italy. This article was finalized during Stefano Maffei's stay as a Fulbright Scholar at Temple University Beasley Law School in the spring and summer of 2011. David Sonenshein is the Jack E. Feinberg Professor of Litigation at the Temple University Beasley School of Law. Professor Sonenshein thanks Dean JoAnne Epps of the Temple University Beasley School of Law for her support of this project through a Faculty Research Grant, and Elyssia Musolino, Amy Aiq and Joshua Materese for their valuable work as research assistants. The authors collectively wish to thank Professors Mike Vitiello (University of the Pacific McGeorge School of Law) and Andrew Ashworth (University of Oxford) for the extremely engaging discussion of the ECtHR rulings in the Gifgen case at the Advanced Seminar in Current Developments in European Law, held in Parma in June 2009 and June 2010.

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