The Cloak of the Law and Fruits Falling from the Poisonous Tree: A European Perspective on the Exclusionary Rule in the Gafgen Case

This article revisits the controversial question of whether evidence found in breach of fundamental constitutional rights may be used against the defendant in a criminal case, and it compares the current European perspective on the exclusionary rule with certain features of the corresponding American rule, in its current interpretation by the Supreme Court. In Europe, this issue has sparked recent debate at supranational levels, following the riding in Gäfgen v. Germany, a leading case of the European Court of Human Rights. The case presented domestic courts and the European Court with the unavoidable alternative of either ensuring fairness toward the defendant in a murder case by excluding the fruits of his coerced confession, or the pursuit of “the truth,” which promoters of crime control worship as the prime objective of criminal adjudication. This article reviews the Gäfgen ruling and the related dissenting opinion, with a view to casting light on whether police brutality might occasionally be afforded the cloak of the law. It argues that unless a bright-line rule of exclusion is developed, the decision on the admissibility of the product of illegal police activity eventually follows a balancing of the totality of circumstances, which in turn nearly always translates in the admissibility of the physical evidence of unconstitutional conduct. This Article concludes that the European Court is reluctant to be too far ahead of the domestic law of the signatory states so as to maintain its political legitimacy.