Comparing injustices: truth, justice, and the system.

Author:Grunewald, Ralph
Position:II. The Implementation of Truth and Justice Within Two Systems C. Limits of the Pursuit for Truth: Procedural Justice through VI. Conclusion, with footnotes, p. 1168-1200 - Miscarriages of Justice
  1. Limits of the Pursuit for Truth: Procedural Justice

    This section clarifies and outlines the extent to which the German and American systems support procedural justice even if it means that "the truth" doesn't make it into court. Both systems regulate what kind of evidence can be collected and what bars it from being admissible. The systems do it for different purposes: deterrence of law enforcement being a main reason in the United States, while the protection of "objective values" is seen as a guiding concept in Germany. These differences will be explained first before a few procedural rules from each system are contrasted. Using examples from both criminal procedures the second part will (continue to) argue that procedural justice is often unrelated to the inquisitorial or adversarial backdrop it exists in. In some instances an inquisitorial system like Germany's can be more protective of a suspect's right against self-incrimination than the American adversarial system.

    1. Differences and Similarities of General Ideas of Criminal Procedure

      Regulations that control how evidence is collected and what kind of evidence is admissible in court is an area that can exemplify a system's approach to truth and justice. Procedural rules including, for instance, Miranda warnings, attorney-client privilege, or the exclusionary rule make establishing the factual basis of a case harder. But, as was established earlier, procedural law and justice follow different imperatives than substantive law and justice. In most criminal justice systems, the promise of a fair trial and the protection of due process rights can be seen as the consequence of the monopoly of the state to investigate and punish crimes. Neither any European nor the American system tries to find the truth "at all costs." (164) It is therefore not in line with the law when it is argued that the "Anglo-American law has an 'adversarial' tradition that favors the values of 'due process' and exclusion, while continental law has an 'inquisitorial' tradition that favors 'crime control' and inclusion." (165) Furthermore, the American system of exclusionary rules has been criticized as being too restrictive, technical, and truth defeating (166) and that "the objective of reaching a true and just result in any particular case" is subordinated by those "truth-defeating changes" in criminal procedure. (167)

      Procedural rules have their own purposes; they need to strike a balance between the goal of finding the facts of a case and protecting a suspect's rights. Foreign systems actually apply a number of limits to pretrial investigation and also employ broad exclusionary rules--that is, they also have concepts of procedural justice. In contemporary comparative discussions there exists the broadly established myth that the continental criminal system lacks "evidentiary barriers that restrict the information the judge can consider in determining guilt." (168) Former Chief Justice Burger claimed that the exclusionary rule is "unique to American jurisprudence." (169) It is maintained that inquisitorial systems "have no equivalent of the Federal Rules of Evidence, since fixed evidentiary rules might lead to the exclusion of important probative evidence." (170) It is also believed that "the paradigmatic inquisitorial system reflects a singular focus on the ascertainment of truth that effectively subordinates the protection of individual rights." (171) The German criminal system in particular has been cited as one in which exclusionary rules do not exist. (172) Even German authors assert that although "[exclusionary rules can be found in every legal system, ... they are more prevalent in systems adhering to the adversarial approach." (173) All of these claims are difficult to support. Since the beginning of the twentieth century it has been established that a defendant in Germany is not the "object" of an investigation rather than a subject whose dignity (and other rights) need to be protected. (174) Criminal procedure in Europe and Germany in particular establishes a broad array of exclusionary rules that often surpasses in scope their American equivalents. (175) They have even existed "[l]ong before the innovations of the Warren Court." (176) The rule of law and principles of proportionality are part of the core of any civilized system of criminal justice. In all systems, exclusionary rules reflect the fundamental standard that relevant evidence be excluded if constitutional rights are violated. (177)

      In Germany, any criminal inquiry is limited by the constitution, especially Article 20 III GG: "The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice." (178) As was explained earlier, discovering the factual truth of a case is also mandated by the constitution, which requires the guilt of a defendant to be based on facts. Therefore both the objective to find the truth and the limits of the search for it are of constitutional importance. (179) Like the executive branch in general, actors in the criminal justice system are bound by statutory law and law in general. Constitutional rights of a suspect or any person can only be limited if an official act is proportionate and shows a balance between the purpose of the act and rights of the person. Human dignity is one fundamental right but there are many more such as the right of privacy, the protection of one's home, or the presumption of innocence. (180) Substantive justice demands the search for the whole truth but procedural justice then limits it. (181) The purpose of the exclusionary rule, at least the way it is discussed, is the protection of individual, fundamental, constitutionally protected rights. The German Constitution establishes an objective system of values (Objektive Wertordnung) that limits official power. (182) These values are indisputable and cannot be infringed upon even if a suspect agrees. (183) Every procedural step, every warrant, arrest, search, interrogation, has to be justified in the light of the constitutional value system. For most of these standard situations the legislature established rules under which individual rights can be curbed. In other instances the courts have to decide whether or not an investigative procedure violated constitutional values. As will be shown below, there are sections of the procedural code that specifically address police conduct but, interestingly from a comparative point of view, "deterrence" is not a pronounced objective of the exclusionary rule. The constitutional discourse is much less pragmatic and more value-oriented than in the United States.

      In the Unites States, the exclusionary rule has its focal point on the Fourth and Fifth Amendments, which "throw great light on each other." (184) The Supreme Court was initially hesitant to exclude evidence even if it was illegally obtained. In Adams u. New York, the Court observed that:

      The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. (185) Later, the Supreme Court acknowledged the exclusionary rule and explained (in Weeks v. United States (186)) that the Fourth Amendment addresses courts and law enforcement alike:

      The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. (187) Excluding evidence was seen as an "effective way of deterring unreasonable searches" (188) and "an essential part of the right to privacy" protected by the Fourth Amendment. (189) Exclusion was viewed as essential to safeguarding "the privacy and security of individuals against arbitrary invasions by government officials" (190) and by that, the protection of rights is considered an integral part of the exclusionary rule. In later decisions, however, deterrence of law enforcement was considered the "prime purpose" of the exclusionary rule, "if not the sole one," while at the same time its actual deterrent effect was questioned. (191) "[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates" (192) because "removing the incentive to disregard [the Constitution]" is "the only effectively available way" to compel respect for it. (193) That means that the values and individual rights established in the Constitution are enforced through the exclusionary rule. However, by stressing the deterrence rationale (as opposed to values and individual rights) the Court curbed the exclusionary rule. (194) The exclusionary rule should "be applicable only where its deterrence benefits outweigh its 'substantial social costs.'" (195) This argument opened the door to exceptions to the exclusionary rule, because if deterrence of law enforcement is the main goal, then, for example, evidence need not be excluded if a police officer acted in "good faith" while relying on a warrant that was later found to be invalid, (196) if the evidence is sufficiently attenuated from police misconduct, (197) or if an officer seizes evidence relying on a statute that was later considered violative of the Fourth Amendment. (198)

    2. Lying on the Stand: Differences in the Treatment of the...

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