Sabine Gless Thomas Richter Editors a Comparative Perspective on Evidentiary Rules
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Ius Gentium: Comparative Perspectives on Law and Justice 74 Sabine Gless Thomas Richter Editors Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules Ius Gentium: Comparative Perspectives on Law and Justice Volume 74 Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth WA, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, Zuid-Holland, The Netherlands More information about this series at http://www.springer.com/series/7888 Sabine Gless • Thomas Richter Editors Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules Editors Sabine Gless Thomas Richter Juristische Fakultät der Universität Basel Freiburg im Breisgau, Germany Basel, Switzerland ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-12519-6 ISBN 978-3-030-12520-2 (eBook) https://doi.org/10.1007/978-3-030-12520-2 Library of Congress Control Number: 2019930360 © The Editor(s) (if applicable) and The Author(s) 2019. This book is an open access publication. Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adap- tation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made. The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publi- cation does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Acknowledgements We are grateful to all contributors or their work, commitment, and passion for this project. We studied how exclusionary rules are established in the respective pro- cedural codes and how they are applied in practice, with a focus on case law, and conducted interviews in almost all relevant jurisdictions. We explored the potential of alternative and supplementary means of compelling law enforcement to respect human rights, including criminal sanctions, disciplinary action, and civil liability. Throughout the project, we learned a great deal from each other. National issues and legal solutions, as well as comparative issues and basic principles, were discussed at two workshops and conferences. The first meeting took place in March 2016 in Taipei, Taiwan, and was co-organized by the Taiwan Ministry of Justice. We are especially grateful to Pauline Tsai for her exceptional support. The second meeting occurred in May 2017 in Basel, Switzerland, and received remarkable financial support from the Sino-Swiss Science and Technology Cooperation Program of the Swiss National Research Foundation. Major financial funds for this project, including the publication of its results, have been provided by the Swiss National Research Foundation and without it, the project could never have been realized. We are very grateful for the Foundation’s generous assistance and enduring support. Last but not least, we wish to thank MLaw Laura Macula for her meticulous planning and monitoring throughout the project and all her precious advice, stud. iur. Lia Börlin for the time and energy she dedicated to checking references and material, and Claudine Abt for her support in finalizing all the papers for publication. Basel, Switzerland Sabine Gless November 2018 Thomas Richter v Contents Introduction .............................................. 1 Sabine Gless and Thomas Richter Part I Comparative Perspectives The Potential to Secure a Fair Trial Through Evidence Exclusion: A Swiss Perspective ........................................ 15 Laura Macula The Potential to Secure a Fair Trial Through Evidence Exclusion: A German Perspective ...................................... 61 Thomas Weigend Regulating Interrogations and Excluding Confessions in the United States: Balancing Individual Rights and the Search for the Truth ..... 93 Jenia Iontcheva Turner The Potential to Secure a Fair Trial Through Evidence Exclusion: A Taiwanese Perspective .................................... 131 Yu-Hsiung Lin, Shih-Fan Wang, Chung-Yen Chen, Tsai-Chen Tsai and Chiou-Ming Tsai The Potential to Secure a Fair Trial Through Evidence Exclusion: A Chinese Perspective ...................................... 163 Na Jiang Criminal Justice and the Exclusion of Incriminating Statements in Singapore .............................................. 213 Hock Lai Ho vii viii Contents Part II Exclusionary Rules—Quo Vadis The Purposes and Functions of Exclusionary Rules: A Comparative Overview .................................... 255 Jenia Iontcheva Turner and Thomas Weigend The Fair Trial Rationale for Excluding Wrongfully Obtained Evidence ................................................. 283 Hock Lai Ho Exclusionary Rule of Illegal Evidence in China: Observation from Historical and Empirical Perspectives ...................... 307 Weimin Zuo and Rongjie Lan Securing a Fair Trial Through Exclusionary Rules: Do Theory and Practice Form a Well-Balanced Whole? ..................... 329 Susanne Knickmeier Exclusionary Rules—Is It Time for Change? ..................... 349 Sabine Gless and Laura Macula Editors and Contributors About the Editors Sabine Gless teaches criminal law, criminal procedure, and international criminal law at the University of Basel, Switzerland. Her research includes comparative work in evidence law and international cooperation with a focus on human rights issues and exclusionary rules. Thomas Richter served as the Head of the East Asian Department of the Max Planck Institute for Foreign and International Law in Freiburg, Germany. In this capacity, he analyzed the criminal law and criminal procedure law of the People’s Republic of China and co-directed a comparative study on non-prosecution policies in Germany and the People’s Republic of China. In cooperation with the German Institute for Human Rights (DIMR), he evaluated the Human Rights Dialogue between the People’s Republic of China and Switzerland (2006/2007). Most recently, Thomas Richter assessed the Rule of Law Programme for Asia instituted by the Konrad Adenauer Foundation (2013). His research interests include criminal law, human rights law, and environmental law in East and Southeast Asia, espe- cially in China. Contributors Chung-Yen Chen University of Tübingen, Tübingen, Germany Sabine Gless Faculty of Law, University of Basel, Basel, Switzerland Hock Lai Ho Faculty of Law, National University of Singapore (NUS), Singapore, Singapore Na Jiang College for Criminal Law Science, Beijing Normal University (BNU 北 京师范大学), Beijing, China ix x Editors and Contributors Susanne Knickmeier Department of Criminology, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Rongjie Lan Law School, Southwestern University of Finance and Economics, Chengdu, China Yu-Hsiung Lin National Taiwan University, Taipei, Taiwan Laura Macula MLaw, Faculty