Criminal Procedure: Comparative Aspects

One possible way of controlling police is the imposition of individual civil and criminal liability for unlawful invasions of citizens' rights. Such remedies are available in most legal systems, but they are notoriously ineffectual in cases of misconduct below the level of outright brutality. The same must be said of formal disciplinary proceedings. Internal discipline generally functions comparatively well within hierarchical statewide or nationwide police forces, yet disciplinary measures are often regarded as being out of proportion with respect to routine violations and therefore are initiated only for the most egregious offenses.

In many systems, the police are formally regarded as auxiliaries of the state's attorney and subject to his or her orders and supervision (see, e.g., French CPP, arts. 12, 13; German Gerichtsverfassungsgesetz (GVG) vom 9. Mai 1975, Bundesgesetzblatt 1975 I, p. 1077, § 152). But prosecutorial supervision does not provide an effective check on police activities because prosecutors typically remain aloof from routine investigations and police agencies do not look favorably upon "outside" interference.

Another approach toward guaranteeing the legality of pretrial proceedings is to entrust an impartial magistrate with conducting the investigation. The institution of the investigating magistrate has long been a hallmark of continental criminal procedure. At the beginning of the twenty-first century, this institution still exists in France, Spain, and the Netherlands but has been abolished in Germany and Italy, among other countries. In those systems that still retain the investigating magistrate procedure, its practical relevance is limited to the most serious cases, and even there many of the steps in collecting evidence are delegated to judicial police. It would indeed be unrealistic to expect that a magistrate could single-handedly conduct or even effectively control the investigation as long as the police monopolize the requisite manpower, information, equipment, and experience. The "myth of judicial supervision" (see Goldstein and Marcus, pp. 246–259) as well as the formal authority of state's attorneys over pretrial proceedings may in fact provide a convenient legal smokescreen behind which the police are shielded from effective control.

Lacking the legal and institutional mechanisms described above, American law has adopted an indirect approach designed to give maximum protection to the individual. According to U.S. law, evidence obtained in violation of a suspect's rights cannot be used in court to support a conviction (Mapp v. Ohio, 367 U.S. 643 (1961); Dickerson v. U.S., 120 S.Ct. 2326 (2000)). Proponents of this rule expect its operation to deter police from illegal conduct, on the assumption that police have a professional interest in the conviction of offenders. To a surprisingly large extent, legal rules providing for the exclusion of illegally obtained evidence have spread from the United States to Europe. Such rules are, however, not always designed to control police conduct.

Even more sweeping exclusionary rules than in the United States apply in Italy and Spain. Italian law simply states that evidence obtained in violation of a legal prohibition cannot be used; this rule is to be applied at any stage of the proceedings, even on the court's own motion (Italian CPP, art. 191). In Spain, the relevant statute provides that evidence obtained in violation of fundamental rights shall not have any direct or indirect effect (Ley orgánica 6/1985 of July 1, 1985, del poder judicial, art. 11 sec. 2). Such fundamental rights include the right to defense and to counsel, the right to be informed about the accusation, the privilege against self-incrimination, and the presumption of innocence (cf. Spanish Constitution, art. 24 sec. 2). Spanish courts have interpreted this provision to require exclusion even of the "fruits of the poisonous tree" (see Picó i Junoy). There is little information available about how these far-reaching rules of exclusion actually operate in Italian and Spanish practice.

In Germany, statutory law mandates exclusion of statements obtained from suspects or witnesses by force, deception, hypnosis, or similar illicit methods of interrogation (StPO, § 69 sec. 3, § 136a). The courts have gone further and refused to use as evidence, for example, a suspect's diary ( Judgment of the Federal Court of Appeals of Feb. 21, 1964, 4 StR 519/63, 19 Entscheidungen des Bundesgerichtshofes in Strafsachen (BGHSt) 325), the results of an illegal wiretap ( Judgment of the Federal Court of Appeals of March 17, 1983, 4 StR 640/82, 31 BGHSt 304), a statement elicited from the suspect by a police informer illegally placed in the suspect's cell during pretrial custody ( Judgment of the Federal Court of Appeals of April 28, 1987, 5 StR 666/86, 34 BGHSt 362), and a suspect's statement made to the police without the requisite prior warning of his right to remain silent (Judgment of the Federal Court of Appeals of Feb. 27, 1992, 5 StR 190/91, 38 BGHSt 214). Exclusion in these cases was mainly based on the argument that admission of the evidence would violate the principle of due process (Rechtsstaatlichkeit). Since this is a rather vague and pliable concept, it is not surprising that German courts have admitted evidence in other, factually quite similar cases, arguing that the violation of the suspect's rights was outweighed by the state's interest in determining the truth (see, e.g., Judgment of the Federal Court of Appeals of July 9, 1987, 4 StR 223/87, 34 BGHSt 397, admitting into evidence the suspect's diary in a murder case). Because deterrence of police misconduct is not the rationale for exclusion of evidence, German courts tend to admit evidence obtained through illegal searches (Judgment of the Federal Court of Appeals of Feb. 15, 1989, 2 StR 402/88, 1989 Neue Zeitschrift für Strafrecht 375 at 376) as well as evidence found through investigations based on illegally obtained evidence ("fruits of the poisonous tree"; Judgment of the Federal Court of Appeals of August 24, 1983, 3 StR 136/83, 32 BGHSt 68).

According to French law, results of investigatory acts can be stricken from the record of the investigation when the court in charge of controlling pretrial procedure (chambre d'accusation) determines that they were performed illegally. In a few instances, for example with respect to the rules governing the conduct of a domicile search, the Code of Criminal Procedure explicitly provides for annulment of the act and its consequences when the relevant rules are violated (French CCP, art. 59 sec. 3). Beyond that, annulment occurs whenever a substantial rule of procedure was misapplied and prejudice to the complaining party resulted (French CCP, arts. 171, 802).