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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
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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