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The Relation Between the Violation and the Evidence

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Illicitly Obtained Evidence at the International Criminal Court

Part of the book series: International Criminal Justice Series ((ICJS,volume 4))

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Abstract

Article 69(7) of the ICC Statute, the main provision dealing with the exclusion of evidence, sets out a number of different requirements. The previous chapters have included approaches to the interpretation of these individual requirements. An important question left for the construction of the ICC exclusionary rule pertains to the relation between these requirements, more particularly to the relation between the legal violation committed during an investigation and the evidence whose admissibility is at stake. This chapter examines this relation, showing in particular that this relation not only pertains to the question of causality but also includes a normative dimension. This examination raises a number of questions that have likewise occurred in domestic debates. This includes for instance the question of whether an exclusionary rule should apply to derivative evidence, which would mean that a system of criminal procedure would apply some version of the so-called ‘fruits of the poisonous tree doctrine’. A related question pertains to situations where a person is interrogated several times and where a violation committed at an earlier occasion may require the exclusion of statements made during a later interrogation. Finally, a further problem concerns the handling of hypothetical considerations in cases where it would have been possible for investigators to collect the tainted evidence in a legally sound way.

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Notes

  1. 1.

    Regina v. Strachan, Supreme Court of Canada, decision of 15 December 1988, [1988] 2 S.C.R. 980, para 46. Similar, see Regina v. Therens, Supreme Court of Canada, decision of 23 May 1985, [1985] 1 S.C.R. 613, para 66, where the admissibility of a breathalyser test was at stake which, as well, had been obtained subsequent to a violation of the right to counsel. See also Stuart 2010a, p. 580 et seq.

  2. 2.

    Schröder 1992, p. 76 and p. 77. In the context of coercion under Section 136a of the StPO, see German Federal Supreme Court (BGH), decision of 31 May 1968, Neue Juristische Wochenschrift 1968, paras 1838 et seq. See also Meyer-Goßner 2013, Section 136a, para 28.

  3. 3.

    See Hudson v. Michigan, United States Supreme Court, decision of 15 June 2006, 547 U.S. 586 (2006): “Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression”. Also see Ambos 2010, p. 141; Cammack 2010, p. 642. Critical with respect to the decision in Hudson and in favour of a standard of mere “contributory causation”, see Alschuler 2008, p. 1741 et seq.

  4. 4.

    Ashworth 1977, p. 723.

  5. 5.

    Regina. v. Goldenberg, Court of Appeal of England and Wales, decision of 18 May 1988, [1989] 88 Cr. App R. 285.

  6. 6.

    Ashworth and Redmayne 2010, p. 349.

  7. 7.

    See Regina v. Alladice, Court of Appeal of England and Wales, decision of 8 May 1988, [1988] WL 624104; see also Birch 1989, p. 108.

  8. 8.

    Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 171.

  9. 9.

    See Sect. 2.2.2.

  10. 10.

    Alamuddin 2010, p. 241; Triffterer 2008—Piragoff, Article 69, para 59.

  11. 11.

    Nardone v. The United States, United States Supreme Court, decision of 11 December 1939, 308 U.S. 338 (1939).

  12. 12.

    See Silverthorne Lumber Co. v. United States, United States Supreme Court, decision of 26 January 1920, 251 U.S. 385 (1920). On the recognition of the ‘fruits of the poisonous tree doctrine’, see also Ambos 2010, p. 130; Harris 1991, p. 314 et seq.; Hessler 2000, p. 239 et seq.; LaFave et al. 2004, p. 509 et seq.

  13. 13.

    Nardone v. The United States, United States Supreme Court, decision of 11 December 1939, 308 U.S. 338 (1939).

  14. 14.

    Ambos 2010, p. 131.

  15. 15.

    On these exceptions, see in particular Sect. 3.3.2.

  16. 16.

    See also Harris 1991, p. 315.

  17. 17.

    See LaFave et al. 2004, p. 510, who point out that restricting the exclusionary rule means to recognize that “[c]omplete exclusion of fruits would be excessive in light of the obvious competing considerations: that exclusion of evidence thwarts society’s interest in convicting the guilty.”. In addition, U.S. courts have considerably restricted the exclusionary rule by rejecting its applicability to the so-called ‘Miranda doctrine’, which pertains to the right to be properly cautioned on one’s right to silence and on the right to legal counsel and which was established by Miranda v. Arizona, United States Supreme Court, decision of 13 June 1966, 384 U.S. 436 (1966). This restriction in turn is based on the constitutional basis of the U.S. exclusionary rule. ‘Miranda’ rights are not themselves considered constitutional rights but only prophylactic measures. Accordingly, any failure to comply with them does not result in a violation of the suspect´ s constitutional rights. The Supreme Court has argued that such a violation alone would however be able to provide a basis for the application of the constitutionally based exclusionary rule to derivative evidence. To this effect, first Michigan v. Tucker, United States Supreme Court, decision of 10 June 1974, 417 U.S. 433 (1974) and Oregon v. Elstad, United States Supreme Court, decision of 4 March 1985, 470 U.S. 298 (1985). For a more recent decision, see United States v. Patane, United States Supreme Court, decision of 28 June 2004, 02-1183 (2004). Also see LaFave et al. 2004, p. 526 et seq. For a critical assessment, see Cammack 2010, p. 650 et seq; Trüg 2003, p. 431 et seq. This jurisprudence can clearly not be transferred to the ICC Statute. Article 55(2) of the ICC Statute expressly sets forth a right of the suspect to be properly cautioned. Besides, there is no basis in Article 69(7)(b) of the ICC Statute for such an exception.

  18. 18.

    Regina v. Collins, Supreme Court of Canada, decision of 9 April 1987, [1987] 1 S.C.R. 265, para 37. See also Part III C IV.

  19. 19.

    At least the admission of derivative real evidence was generally considered fair in Regina v. Collins based on the argument that its existence as such did not depend on the involvement of the accused. It was only in its later case law that the Canadian Supreme Court unequivocally applied the ‘conscriptive’ test to derivative real evidence as well, excluding this evidence where it had ultimately been discovered through a suspects’s involuntary contribution; see, Regina v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206, para 27. See also Mark D. Wiseman 1997, p. 440.

  20. 20.

    Regina v. Grant, Supreme Court of Canada, decision of 17 July 2009, [2009] 2 S.C.R. 353. For a summary of the facts of the case, see also Stuart 2010b, p. 321.

  21. 21.

    Regina v. Grant, Supreme Court of Canada, decision of 17 July 2009, [2009] 2 S.C.R. 353, in particular paras 116 et seq.

  22. 22.

    See Regina v. Strachan, Supreme Court of Canada, decision of 15 December 1988, [1988] 2 S.C.R. 980, paras 46 and 47. See also Penney 2003, p. 126.

  23. 23.

    See Regina v. Therens, Supreme Court of Canada, decision of 23 May 1985, [1985] 1 S.C.R. 613, para 66. Also see Stuart 2010a, p. 581.

  24. 24.

    Muthorst 2009, p. 207.

  25. 25.

    German German Federal Supreme Court (BGH), decision of 22 February 1978, Neue Juristische Wochenschrift 1978, p. 1390; German Federal Supreme Court (BGH), decision of 24 August 1983, Neue Juristische Wochenschrift 1984, p. 2772; German Federal Supreme Court (BGH), decision of 28 April 1987, Neue Juristische Wochenschrift 1987, p. 2525. See also Effer-Uhe 2008, p. 339; Kühne 2010, p. 558.

  26. 26.

    Ambos 2010, p. 147.

  27. 27.

    So far, the BGH has recognized the so-called ‘Fernwirkung’, meaning an extension of the exclusionary rule to derivative evidence, only where a violation of the rules on the interception of telecommunications by the German intelligence agencies in the so-called G10 law (Gesetz zu Beschränkung des Brief-, Post- und Fernmeldegeheimnisses, as amended and promulgated on 13 August 1968, last amended on 31 July 2009) was concerned. See German Federal Supreme Court (BGH), decision of 18 April 1980, Neue Juristische Wochenschrift, 1980, p. 1700. In difference to the concept of ‘Fernwirkung’, see the notion of ‘Fortwirkung’, which applies more broadly in the case of consecutive statements; see fn. 940.

  28. 28.

    Meyer-Goßner 2013, Einleitung, para 57.

  29. 29.

    See Ambos 2010, p. 147, with further references.

  30. 30.

    Effer-Uhe 2008, p. 399.

  31. 31.

    Amelung 1991, p. 2539; Dencker 1977, p. 78 et seq.

  32. 32.

    See Sect. 3.3.3.

  33. 33.

    Mellifont 2007, p. 88.

  34. 34.

    See Mellifont 2007, p. 77; Stone 1995, p. 10. See also Sect. 3.3.3.

  35. 35.

    Choo 2013, p. 344.

  36. 36.

    See Sect. 6.3.1.

  37. 37.

    Choo 2013 p. 344.

  38. 38.

    Mellifont 2007, p. 87.

  39. 39.

    For a summary of the facts and procedural history, see Sauer and Trilsch 2011, p. 314.

  40. 40.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 69.

  41. 41.

    See Safferling 2012, p. 503, who criticises the ECtHR for not having strictly implemented the ‘fruit of the poisonous tree doctrine’.

  42. 42.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 171: “For the purposes of its own assessment under Article 6, it considers it decisive that there is a causal link between the applicant's interrogation in breach of Article 3 and the real evidence secured by the authorities as a result of the applicant's indications […]. In other words, the impugned real evidence was secured as a direct result of his interrogation by the police that breached Article 3.”

  43. 43.

    Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 178: “The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule, the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article.” See also Jackson and Summers 2012, p. 193; Sauer and Trilsch 2011, p. 316.

  44. 44.

    See in particular Sect. 3.2.6.

  45. 45.

    Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 179. On the admissibility of this new confession, see Sect. 6.3.1.

  46. 46.

    See Sect. 4.3.2.2.4.

  47. 47.

    For a similar argument at the domestic level, see Regina v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206.

  48. 48.

    See Sect. 4.3.2.2.1.

  49. 49.

    German Federal Supreme Court (BGH), decision of 22 February 1978, Neue Juristische Wochenschrift 1978, p. 1390; German Federal Supreme Court (BGH), decision of 24 August 1983, Neue Juristische Wochenschrift 1984, p. 2772; German Federal Supreme Court (BGH), decision of 28 April 1987, Neue Juristische Wochenschrift 1987, p. 2525. See also Sect. 3.3.1.

  50. 50.

    See in particular Sect. 2.2.3.

  51. 51.

    See Ambos 2010, p. 510, who highlights the similarities with the normative attribution of criminal responsibility through the German doctrine of ‘Zurechnungslehre’ (which could be translated by: ‘doctrine of attribution’). On the different doctrines, see also Sect. 3.3.2.

  52. 52.

    See Ambos 2010, p. 139.

  53. 53.

    Ambos 2010, p. 142; LaFave et al. 2004, p. 510.

  54. 54.

    LaFave et al. 2004, p. 510.

  55. 55.

    Even more broadly than Article 69(7) of the ICC Statute has been understood here, see Sect. 6.1. See also Stuart 2010a, p. 580 et seq.

  56. 56.

    See Regina v. Strachan, Supreme Court of Canada, decision of 15 December 1988, [1988] 2 S.C.R. 980, paras 46 and 47. Also see Penney 2003, p. 126. Note that this consideration goes further than the English approach, which only considers the existence of a causal connection when it assesses whether admitting the evidence “would have such an adverse effect on the fairness of the proceedings” in terms of Section 78 of PACE; see Sect. 6.1.

  57. 57.

    See Sect. 4.3.2.2.5.

  58. 58.

    See United States Supreme Court, decision of 26 June 1975, 422 U.S. 590 (1975). Also see Trüg 2003, p. 457.

  59. 59.

    See for instance Brown v. Illinois, United States Supreme Court, decision of 26 June 1975; Regina v. Goldhart, Supreme Court of Canada, decision of 4 July 1996, [1996] 2 S.C.R. 463, paras 40, 45.

  60. 60.

    United States v. Ceccolini, United States Supreme Court, decision of 21 March 1978; Regina v. Goldhart, Supreme Court of Canada, decision of 4 July 1996, [1996] 2 S.C.R. 463, para 42.

  61. 61.

    United States v. Ceccolini, United States Supreme Court, decision of 21 March 1978.

  62. 62.

    See Sect. 6.4.2. For a critical assessment of this jurisprudence, see also LaFave et al. 2004, p. 525.

  63. 63.

    Similar, Regina v. Goldhart, Supreme Court of Canada, decision of 4 July 1996, [1996] 2 S.C.R. 463, para 42.

  64. 64.

    Trüg 2003, p. 456.

  65. 65.

    Even though Article 64(6)(b) of the ICC Statute allows the Chambers to “require the attendance and testimony of witnesses”, the lack of enforcement powers and in particular the unavailability of sanctions prevents that witnesses be compelled to appear; for a detailed assessment, see Sluiter 2009, p. 592 et seq.

  66. 66.

    See Combs 2010, p. 12; Sluiter 2009, p. 591.

  67. 67.

    See Sect. 5.4.

  68. 68.

    See Sect. 5.4.3.

  69. 69.

    See Committee against Torture, Concluding observations of the Committee against Torture on Germany, para 193: “The Committee recommends that further legislative attention be paid to the strict enforcement of article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognizance of the deciding judges in all judicial proceedings.”, UN Doc. A/53/44 of 11 May 1998, available at: http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/A.53.44,paras179–195.En?OpenDocument (last visited: October 2013).

  70. 70.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), paras 166 and 167.

  71. 71.

    See Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 171.

  72. 72.

    Jackson and Summers 2012, p. 193. For a critical assessment of this distinction, see Sauer and Trilsch 2011, p. 318.

  73. 73.

    See Sects. 6.2.1.3 and 6.2.1.4.

  74. 74.

    In Germany, the ‘fruits of the poisonous tree doctrine’ is commonly treated under the heading of ‘Fernwirkung’, whereas the question of ‘consecutive statements’ is considered under the heading of ‘Fortwirkung’.

  75. 75.

    See Section 136(1)(2) of the German Code of Criminal Procedure (StPO).

  76. 76.

    See for instance German Federal Supreme Court (BGH), decision of 18 December 2008, Neue Juristische Wochenschrift 2009, p. 1427.

  77. 77.

    This explanation is dealt with in German doctrine under the term of ‘qualifizierte Belehrung’, which might be translated by: ‘additional caution’.

  78. 78.

    See German Federal Supreme Court (BGH), decision of 18 December 2008, Neue Juristische Wochenschrift 2009, p. 1427.

  79. 79.

    See Section 136a of the StPO.

  80. 80.

    See German Federal Supreme Court (BGH), decision of 9 March 1995, Neue Juristische Wochenschrift 1995, p. 2047. The BGH seems to focus on the remaining coercive effect of the violation itself. It has excluded secondary statements based on the assumption that the violation continued to impact on the defendant’s mind. But without explicitly saying so, the judges also seem to have attached some significance to the impact of having testified before. The case-law at least considers the lapse of time between the statements, as well as their similarity in content. The main difference to the cases of a failure to caution however pertains to whether and how the continuing effect on the second statement can be interrupted. The BGH has not decided so far whether this might require an additional caution. It has contented itself to observe the inconsistency of its own case-law; see German Federal Supreme Court (BGH), decision of 18 December 2008, Neue JuristischeWochenschrift 2009, p. 1427 (BGHSt 53, 112). See also Beulke 2012, para 142; Meyer-Goßner 2013, Section 136a, para 30.

  81. 81.

    See Regina v. McGovern, Court of Appeal of England and Wales, decision of 18 May 1990, [1991] Crim. L.R. 124; Regina v. Neil, Court of Appeal of England and Wales, decision of 29 November 1993, [1994] Crim. L.R. 441. In addition, English courts have also relied on the fact that the initial oppression continued to operate, see Regina v. Glaves, Court of Appeal of England and Wales, decision of 29 January 1993, [1993] Crim. L.R. 685.

  82. 82.

    See Regina v. Neil, Court of Appeal of England and Wales, decision of 29 November 1993, [1994] Crim. L.R. 441.

  83. 83.

    Regina v. McGovern, Court of Appeal of England and Wales, decision of 18 May 1990, [1991] Crim. L.R. 124; Regina v. Glaves, Court of Appeal of England and Wales, decision of 29 January 1993, [1993] Crim. L.R. 685.

  84. 84.

    See also Choo 2013, p. 344.

  85. 85.

    Regina v. Glaves, Court of Appeal of England and Wales, decision of 29 January 1993, [1993] Crim. L.R. 685.

  86. 86.

    Regina v. Neil, Court of Appeal of England and Wales, decision of 29 November 1993, [1994] Crim. L.R. 441. See also Choo 2013, p. 343.

  87. 87.

    Mellifont 2007, p. 81.

  88. 88.

    In Regina v. Neil, Court of Appeal of England and Wales, decision of 29 November 1993, [1994] Crim. L.R. 441, the defendant was interviewed twice. The Court of Appeal excluded his second statement even though it had been properly conducted, albeit without a previous opportunity to seek legal advice. It claimed that “the circumstances of the second interview were insufficient to provide a safe and confident opportunity of withdrawing those admissions”. In contrast, in Regina v. Singleton, Court of Appeal of England and Wales, decision of 14 February 2002, [2002] EWCA Crim. 459, the judges, while confirming the authoritative decision on derivative statements in Neil, admitted a statement even though earlier testimony of the defendant was held to be inadmissible. The Court argued that “the appellant plainly had ample opportunity to decide whether or not to volunteer a repetition of what he had earlier said”, even though no intervening circumstances were apparent. See also Mellifont 2007, p. 78 and p. 88.

  89. 89.

    See Regina v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206.

  90. 90.

    See Regina v. Burlingham, Supreme Court of Canada, decision of 18 May 1995, [1995] 2 S.C.R. 206: “Appellant's statement […] too was derivative evidence flowing from his confused state of mind stemming from the s. 10(b) violations and the critical decisions made in the absence of counsel. It was not mere windfall evidence for the Crown. Nothing would have been said had appellant not been improperly conscripted by the police to provide evidence against himself.“Also see Regina v. I. (L.R.) and T. (E.), Supreme Court of Canada, decision of 16 December 1993, [1993] 4 S.C.R. 504; Regina v. Plaha, Court of Appeal for Ontario, decision of 26 August 2004, paras 51 et seq.

  91. 91.

    Regina v. Wittwer, Supreme Court of Canada, decision of 5 June 2008, [2008] 2 S.C.R. 235, paras 21. See also Stuart, Charter Justice in Canadian Criminal Law, p. 584 et seq.

  92. 92.

    Regina v. Wittwer, Supreme Court of Canada, decision of 5 June 2008, [2008] 2 S.C.R. 235, paras 21 and 22. Regina v. Plaha, Court of Appeal for Ontario, decision of 26 August 2004, paras 48 et seq.

  93. 93.

    Regina v. I. (L.R.) and T. (E.), Supreme Court of Canada, decision of 16 December 1993, [1993] 4 S.C.R. 504; Regina v. Caputo, Court of Appeal for Ontario, decision of 4 March 1997.

  94. 94.

    Regina v. Plaha, Court of Appeal for Ontario, decision of 26 August 2004, para 47.

  95. 95.

    Regina v. R. (D.), Supreme Court of Canada, decision 27 April 1994, [1994] 1 S.C.R. 881; Regina v. Plaha, Court of Appeal for Ontario, decision of 26 August 2004, para 47.

  96. 96.

    See United States v. Bayer, United States Supreme Court, decision of 9 June 1947, 331 U.S. 532 (1947). While the Court recognized that once a defendant has made a statement he “can never get the cat back in the bag”, it refused to exclude the second testimony on this basis: “But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use perpetually disables the confessor from making a usable one after those conditions have been removed”.

  97. 97.

    Oregon v. Elstad, United States Supreme Court, decision of 4 March 1985, 470 U.S. 298 (1985).

  98. 98.

    See Oregon v. Elstad, United States Supreme Court, decision of 4 March 1985, 470 U.S. 298 (1985).

  99. 99.

    In order to determine whether the initial violation has a continuing effect, the test of the ‘attenuation doctrine’ is applied. Accordingly, the question is whether the violation and the statement are sufficiently insulated from one another. On this case law, see LaFave et al. 2004, p. 529. On this test, see also Sect. 6.2.3.2.

  100. 100.

    See Lyons v. Oklahoma 1999, United States Supreme Court, decision of 5 June 1944, 322 U.S. 596 (1944): “The evidence in this case warranted the inferences that the effects of the coercion which initiated an earlier confession by the accused had been dissipated prior to his second confession, and that the latter was voluntary […].”

  101. 101.

    See Miranda v. Arizona, United States Supreme Court, decision of 13 June 1966, 384 U.S. 436 (1966).

  102. 102.

    Missouri v. Seibert, United States Supreme Court, decision of 28 June 2004, 02-1371 (2004).

  103. 103.

    This is not least evident from the fact that the judges also based their decision on the deliberate nature of the police conduct, see Missouri v. Seibert, United States Supreme Court, decision of 28 June 2004, 02-1371 (2004). See also Mellifont 2007, p. 119; Paterline 2004, p. 302, fn. 31.

  104. 104.

    Missouri v. Seibert, United States Supreme Court, decision of 28 June 2004, 02-1371 (2004): “For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.” See also Paterline, p. 302.

  105. 105.

    See Sect. 6.2.2.

  106. 106.

    Gäfgen v. Germany, ECtHR, decision of 1 June 2010 (Application no. 22978/05), para 179. For a critical assessment, see Sauer and Trilsch 2011, p. 319.

  107. 107.

    Prosecutor v. Delalić et al. (Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, paras 3 and 7.

  108. 108.

    Prosecutor v. Delalić et al. (Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, para 55.

  109. 109.

    See also Sluiter 1999, p. 242.

  110. 110.

    See also Brady 2001, p. 292.

  111. 111.

    Prosecutor v. Delalić et al. (Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, paras 39 and 40.

  112. 112.

    Prosecutor v. Delalić et al. (Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, paras 58 et seq.

  113. 113.

    See Sect. 4.3.3.5.2.

  114. 114.

    See Sect. 6.2.3.2.

  115. 115.

    Muthorst 2009, p. 283.

  116. 116.

    Mellifont 2007, p. 80.

  117. 117.

    See Prosecutor v. Delalić et al. (Decision on Zdravko Mucic’s Motion for the Exclusion of Evidence), ICTY (Trial Chamber), decision of 2 September 1997, para 16.

  118. 118.

    See Sect. 4.3.3.5.2.

  119. 119.

    Trüg 2003, p. 434.

  120. 120.

    For this discussion with respect to the remoteness between the violation and the emergence of the evidence as a factor in the general balancing exercise, see Sect. 6.2.3.3.

  121. 121.

    See Regulations 40(c) and 41(1) of the Regulations of the Office of the Prosecutor of 23 April 2009, available at http://www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Pages/regulations%20of%20the%20otpasp (last visited: October 2013).

  122. 122.

    See Sect. 3.3.2.

  123. 123.

    Nix v. Williams, United States Supreme Court, decision of 11 June 1984, 467 U.S. 431 (1984).

  124. 124.

    See Hudson v. Michigan, United States Supreme Court, decision of 15 June 2006, 547 U.S. 586 (2006): “In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.”

  125. 125.

    See Nix v. Williams, United States Supreme Court, decision of 11 June 1984, 467 U.S. 431 (1984). See also Harris 1991, p. 317; Hessler 2000, p. 266.

  126. 126.

    Beulke 1991, p. 667.

  127. 127.

    Trüg 2003, p. 454.

  128. 128.

    Ambos 2010, p. 137, fn. 843.

  129. 129.

    Slobogin 2013, p. 19.

  130. 130.

    LaFave et al. 2004, p. 513.

  131. 131.

    See Nix v. Williams, United States Supreme Court, decision of 11 June 1984, 467 U.S. 431 (1984). Also see Hessler 2000, p. 269.

  132. 132.

    LaFave et al. 2004, p. 513. Critical with respect to the implications for deterrence for instance Trüg 2003, p. 455.

  133. 133.

    Slobogin 2013, p. 7.

  134. 134.

    On the strong influence on the Spanish exclusionary rule for instance, see Thaman 2013, p. 377.

  135. 135.

    Beulke 1991, p. 666.

  136. 136.

    German Federal Supreme Court (BGH), decision of 28 April 1987, Neue Juristische Wochenschrift 1987, p. 2525. See also Rogall 1988, p. 389.

  137. 137.

    Section 81(a) of the German Code of Criminal Procedure (StPO) stipulates: “(1) A physical examination of the accused may be ordered for the purposes of establishing facts which are of importance for the proceedings. For this purpose, the taking of blood samples and other bodily intrusions which are effected by a physician in accordance with the rules of medical science for the purpose of examination shall be admissible without the consent of the accused, provided no detriment to his health is to be expected.” On this case, see also Jahn and Dallmeyer 2005. On the consideration of a hypothetical course of events in German criminal law, see also Trüg 2003, p. 286, on Section 81(a) cases, see p. 289 et seq.

  138. 138.

    German Federal Supreme Court (BGH), decision of 17 March 1971, Neue Juristische Wochenschrift 1971, p. 1097.

  139. 139.

    German Federal Supreme Court (BGH), decision of 15 February 1989, Neue Zeitschrift für Strafrecht, 1989, p. 375, at p. 376. In this case, which caused great media attention in Germany, the defendant, 28 year old Monika Weimar, was accused of having murdered her two young daughters. During the investigations, the police first conducted a search of her house. This first search was covered by a legally sound search warrant. The investigators subsequently sealed the premises and issued a protocol of the search. The next day however, they reopened the house and searched it again without having obtained a further warrant for this second search. The BGH still decided to admit the respective evidence.

  140. 140.

    Hessler 2000, p. 275 et seq.

  141. 141.

    Trüg 2003, p. 287.

  142. 142.

    Jahn and Dallmeyer 2005, p. 301.

  143. 143.

    Trüg 2003, p. 286.

  144. 144.

    Jahn and Dallmeyer 2005, p. 298; Rogall 1988, p. 389.

  145. 145.

    See Sect. 6.2.1.4.

  146. 146.

    Regina v Alladice, Court of Appeal for England and Wales, decision of 8 May 1988, [1988] WL 624104.

  147. 147.

    Regina v. Walsh, Court of Appeal for England and Wales, decision of 13 July 1989, (1990) 91 Crim. App R. 161.

  148. 148.

    Choo 2013, p. 343.

  149. 149.

    Regina v. Stillman, Supreme Court of Canada, decision of 20 March 1997, [1997] 1 S.C.R. 607, para 102. For a short review of the former approach, see Regina v. Grant, Supreme Court of Canada, decision of 17 July 2009, [2009]. On the former jurisprudence in general, see Sect. 3.3.4. See also Jonathan Dawe and Heather McArthur, ‘Charter Detention and the Exclusion of Evidence After Grant, Harrison and Suberu’, Supreme Court Law Review, 51 (2010), p. 416; Stuart 2010a, p. 600 and p. 601.

  150. 150.

    Regina v. Grant, Supreme Court of Canada, decision of 17 July 2009, [2009] 2 S.C.R. 353, paras 121 et seq. On the new approach regarding discoverability, see also Dawe and McArthur, p. 416 et seq; Stuart 2010a, p. 600 and p. 601.

  151. 151.

    See in particular Sect. 6.1.

  152. 152.

    With respect to the U.S. rule, see Ambos 2010, p. 135, with further references. With respect to the German discussion, see Rogall 1988, p. 387, with further references.

  153. 153.

    Hudson v. Michigan, United States Supreme Court, decision of 15 June 2006, 547 U.S. 586 (2006). On this jurisprudence, see also Alschuler 2008, p. 1809.

  154. 154.

    Beulke 1991, p. 660. See also Hudson v. Michigan, United States Supreme Court, decision of 15 June 2006, 547 U.S. 586 (2006), dissenting opinion Justice Breyer et al.: “The majority first argues that "the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence." But taking causation as it is commonly understood in the law, I do not see how that can be so. […] Although the police might have entered Hudson's home lawfully, they did not in fact do so. Their unlawful behavior inseparably characterizes their actual entry; that entry was a necessary condition of their presence in Hudson's home; and their presence in Hudson's home was a necessary condition of their finding and seizing the evidence.”

  155. 155.

    See Regina v. Alladice, Court of Appeal of England and Wales, decision of 8 May 1988, [1988] WL 624104.

  156. 156.

    For such an approach in the German debate, see Roxin and Schünemann 2012, p. 148; Rogall 1988, p. 391.

  157. 157.

    Slobogin 2013, p. 19.

  158. 158.

    Harris 1991, p. 320.

  159. 159.

    Trüg 2003, p. 288 et seq.

  160. 160.

    Trüg 2003, p. 455. This has been found to be the case in particular where the evidence would have been found through a routine procedure. An example for a routine procedure under U.S. law would be the so-called ‘inventory search’, meaning a search that is regularly conducted upon arrest or when the police seizes a vehicle. The notion of the ‘inventory search’ is an exception to the 4th amendment warrant requirement. According to the jurisprudence of the U.S. Supreme Court, the police may search vehicles and persons immediately upon arrest or the impoundment of a vehicle without a warrant being necessary. In addition, ‘inevitability’ has been acknowledged where the investigative procedure that is supposed to have alternatively provided the evidence had been initiated prior to the violation. Altogether, see Ambos 2010, p. 135 et seq; LaFave et al. 2004, p. 514.

  161. 161.

    For more details on this and other standards of proof under the U.S. law of evidence, see fn. 1038.

  162. 162.

    See Nix v. Williams, United States Supreme Court, decision of 11 June 1984, 467 U.S. 431 (1984): “By contrast, inevitable discovery involves no speculative elements, but focuses on demonstrated historical facts capable of ready verification […].” Critical with respect to this standard, see Ambos 2010, p. 138; Hessler 2000, p. 261 et seq.

  163. 163.

    Regina v. Walsh, Court of Appeal for England and Wales, decision of 13 July 1989, (1990) 91 Crim. App R. 161: “[W]e can see nothing in this case which could properly lead the court to the conclusion [...] that it was likely that the appellant would have made the admissions in any event. The very highest it could be put, to our minds, was that it was perhaps uncertain whether or not the presence of a solicitor would have made any difference.”

  164. 164.

    See Regina v. Grant, Supreme Court of Canada, decision of 17 July 2009, [2009] 2 S.C.R. 353, para 122.

  165. 165.

    For the same line of thought with respect to the U.S. exclusionary rule, see LaFave et al. 2004, p. 515.

  166. 166.

    See Beulke 1991, p. 671, who supports however a higher standard that would correspond to the ‘no reasonable doubt standard’.

  167. 167.

    See Sect. 7.6.

  168. 168.

    See Sect. 7.6.

  169. 169.

    See Prosecutor v. Lubanga (Decision on the confirmation of charges), ICC (Pre-Trial Chamber), decision of 29 January 2007, para 84. See also Sect. 1.2.

  170. 170.

    See for instance Prosecutor v. Milosević (Final Decision on the Admissibility of Intercepted Communications), ICTY (Trial Chamber), decision of 14 June 2004; Prosecutor v. Brđanin (Decision on the Defence “Objection to Intercept Evidence”), ICTY (Trial Chamber), decision of 3 October 2003.

  171. 171.

    See Sect. 4.3.3.5.3.

  172. 172.

    See German Federal Supreme Court (BGH), decision of 18 April 2007, Neue Juristische Wochenschrift 2007, 2269 with further references. See also Eisenberg 2011, p. 935.

  173. 173.

    Unites States v. Griffin, United States Court of Appeals, 6th Circuit, decision of 21 April 1974, 502 F.2d 959 (1974). For an overview of the jurisprudence, see Alschuler 2008, p. 1806 et seq.

  174. 174.

    Ambos 2010, p. 136. On this critique with respect to the U.S. rule, see also LaFave et al. 2004, p. 513, who claim however that this is not directed against the ‘inevitable discovery doctrine’ as such but only against its “application in a loose and unthinking fashion”. Critical with respect to the ‘hypothetical search warrant’ also Trüg 2003, p. 456, with further references.

  175. 175.

    Alschuler 2008, p. 1808; Ambos 2010, p. 136; Beulke 1991, p. 673.

  176. 176.

    See Edwards 2001, p. 349 et seq. See also Sect. 4.3.3.5.3.

  177. 177.

    Edwards 2001, p. 412.

  178. 178.

    See Sect. 4.3.2.2.5.

  179. 179.

    Beulke 1991, p. 374.

  180. 180.

    In favour of the possibility of such a determination also Trüg 2003, p. 456.

  181. 181.

    Ambos 2010, p. 136 et seq.; LaFave et al. 2004, p. 514.

  182. 182.

    Harris 1991, p. 317. For a critique of the ‘active pursuit’ requirement in U.S. case law, see Hessler 2000, p. 272 et seq., who contends that the requirement is too formalistic to be applied to the multiple fact patterns that can arise with respect to violations of the 4th amendment.

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    Petra Viebig

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Viebig, P. (2016). The Relation Between the Violation and the Evidence. In: Illicitly Obtained Evidence at the International Criminal Court. International Criminal Justice Series, vol 4. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-093-0_6

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