Sanctioning unfair evidence

Abstract

One can hardly find a judgement or a scholar paper that addresses the matter of the exclusionary remedy of unfair evidence, other than perusing the validity of evidentiary acts, the type of applicable procedural nullities and their different statutory regimes. Within this ambit, the entire topic of unfair evidence is discussed merely instrumentally, thereby the lack of a genuine sanctioning theory is explainable.

The core rationale advocated in this essay is that sanctioning of unfair evidence may never be related to nullities, as the unfair evidence is, by default, a legal, but unlawful piece of evidence.

We do consider so, because the fairness is a high-ranking virtue of licitness, designed to secure the rule of law in evidentiary criminal proceedings beyond the mere formal aspects – but, simultaneously, fraudulent, cunning or deceitful –, in compliance with the statutory law in force.

Hence, the principle of evidentiary licitness is the underlying reason to explain why the exclusionary remedy set forth under the Criminal Procedure Code for the illegally gathered evidence is conceived a fortiori to be applicable to unfair evidence, quite unconditionally.

All in all, we argue that, beyond its undeniable practical usefulness, the topic hereunder brings to light an efficient device aimed to refute any form of unreasonable legalism in the criminal trial, while attaining a reasonable level of conformity with the rule of law.