Exclusion of Evidence Collected in Violation of Personal Rights: In Search of a Conceptual Framework

Abstract

The author explores concepts aimed at explaining why evidence collected in violation of personal rights should be excluded, even at the cost of the truth of the verdict. Four theories stand out: 1) the theory of disciplining investigative bodies; 2) the theory of maintaining the legitimacy of the process; 3) the theory of the full protection of personal rights and 4) the theory of the annulment of unfair advantages. It is noted that the first two concepts cannot justify why excluding evidence is the best solution. The classic way to discipline violators is through legal liability. At the same time, the condemnation of illegal actions may well be expressed in a private court decision. It is also important to consider the risk of a backlash effect resulting from the exclusion of evidence: offenders may not only fail to be deterred but may also feel impunity, and the legitimacy of justice may be undermined by a deliberate departure from the truth (by acquitting the guilty or, conversely, convicting the innocent). The explanatory power of alternative theories is higher, but their action is limited by strict limits. The author concludes that the exclusion of evidence cannot be either a universal tool or an optimal way to protect personal rights in criminal proceedings.