Prolegomena regarding unfair stratagems in evidentiary criminal proceedings

Abstract

The prolegomena hereunder aim to enlighten the pillars of an emerging axiology which is conceived to rule transcendentally the epistemic engine of the criminal trial, thereby crafting a modern theory of evidence and proof.

We argue that the evidence law of the criminal trial and its principles are to be underpinned inter alia by values such as liceity and rightfulness. Thereby, the statutory principle of rightfulness is designed to secure the rule of law in evidentiary criminal proceedings beyond the mere formal conformity – but, simultaneously, fraudulent, cunning or deceitful – with the legislation in force.

In a puzzling statutory environment along with a reluctant case-law, mainly focused on the entrapment matter, rather than identifying the broad features of an unfair conduct pattern in evidentiary proceedings, we argue that one of the main drivers to promote this axiology lies in establishing an accurate distinction between lawfulness, legality and legalism. Under these circumstances, we are trying to canvass the concept of (evidentiary) rightfulness beyond the statutory rule which ascertain the homonymous principle of law, thus enhancing its comprehensibility, and thereby integrating such a topic into the basic concepts of Perelman’s philosophy about reasonable and unreasonable in law.

Henceforth, the taxonomical approach shall set the grounds for the distinction between entrapment and unfair stratagems, as main typologies of unfair conducts, and furthermore between statutory and implicitly prohibited unfair stratagems. Hence, we stress that stratagems represent a high-ranking taxon – a hypernym – that brings together the eluding of the procedure, its misuse, the deceitful unfair hearings, respectively the tricks and traps to obtain confession bypassing a hearing. Each of these types of unfair stratagems will be examined in detail.