Hastings International and Comparative Law Review


Walter Pakter


This Article compares the use of exclusion to deal with evidence obtained through coerced confessions, statements made prior to administration of a "right to silence" warning and through illegal searches and seizures. Despite the existence of statutory penalties to deal with police misconduct in interrogations and searches, European legislatures and courts have turned to exclusion to respond to abuses in these areas. The author examines first the historical background and then recent statutes and decisions introducing exclusion. France has declined scholarly suggestions that irregular interrogations be sanctioned by exclusion. Germany introduced statutory exclusion in reaction to civil liberties abuses under the National Socialists. Italy has attempted to eliminate police interrogation entirely by excluding all statements obtained through police questioning. This means that a "right to silence warning" by police (but not by courts) is superfluous in Italy. Such a warning is required by French law at a later stage of the interrogation if evidence of guilt emerges. A warning is also required by the German Code of Criminal Procedure, but whether omissions should result in exclusion is controversial. With regard to search and seizure violations, all three countries now require exclusion in criminal cases.