Introduction

In the last chapter we saw that there is a common view that the legal systems influenced by the continental tradition do not have rules of criminal evidence. Occasionally this general notion is expressed more precisely as reflecting the fact that such systems lack exclusionary evidential rules or in the notion that exclusionary rules are unique to the common law or even US law. These claims are based on quite a particular understanding of both evidence law and of the differences between the common law and civilian traditions and merit closer examination. In order to understand better the principles underpinning modern criminal evidence law and to consider the relationship between the evidential traditions, it is useful to examine the development of the principles of criminal evidence in some of those legal systems influenced by the civilian legal tradition. The aim here is not to conduct a comparison of the various rules of evidence and procedure in the various European legal systems, but rather to consider broad themes which have been, and which continue to be, of relevance in the majority of continental European jurisdictions in the context of the regulation of the decision-making process in criminal cases. In this context it makes sense to consider countries like Austria, Belgium, France, Germany and Switzerland together, not because their modern laws of evidence are the same (because they quite clearly are not), but because in the development of the laws of criminal evidence, fashioned as they are by reciprocal influences, the countries share something of a common history. The primary focus of this chapter is the development of evidential principles in the two largest and most influential legal systems, namely France and Germany, but reference will also be made to other European jurisdictions.