
Contents
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8 Defense Rights in European Legal Systems under the Influence of the European Court of Human Rights
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I. Introduction I. Introduction
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II. Historical Roots and Current Phenomena II. Historical Roots and Current Phenomena
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1. From a Police Affair to Judicial Proceedings 1. From a Police Affair to Judicial Proceedings
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2. Broadening Fact-Finding at the Expense of Reliability and Fairness? 2. Broadening Fact-Finding at the Expense of Reliability and Fairness?
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III. Transnational Access to Evidence III. Transnational Access to Evidence
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1. Germany 1. Germany
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2. United States 2. United States
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3. Safeguarding Accuracy and Fairness of Fact-Finding 3. Safeguarding Accuracy and Fairness of Fact-Finding
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a. A Ubiquitous Problem … a. A Ubiquitous Problem …
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b. … and a Ubiquitous Solution: Exclusionary Rules b. … and a Ubiquitous Solution: Exclusionary Rules
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IV. New Approaches to Transnational Access to Evidence IV. New Approaches to Transnational Access to Evidence
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1. Reforming MLA … 1. Reforming MLA …
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2. … or Replacing MLA? 2. … or Replacing MLA?
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a. The European Evidence Order and the European Investigation Order a. The European Evidence Order and the European Investigation Order
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b. Mutual Recognition of Evidence? b. Mutual Recognition of Evidence?
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V. Relapses to Extrajudicial Ways? V. Relapses to Extrajudicial Ways?
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1. Data Sharing in Europe 1. Data Sharing in Europe
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2. Trans-Atlantic Data Sharing 2. Trans-Atlantic Data Sharing
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3. Data Sharing and Private Business 3. Data Sharing and Private Business
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VI. Conclusion VI. Conclusion
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References References
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27 Transnational Access to Evidence, Witnesses, and Suspects
Get accessSabine Gless is Professor of Criminal Law and Criminal Procedure at the Faculty of Law, University of Basel.
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Published:11 February 2019
Cite
Abstract
This chapter examines issues surrounding transnational access to evidence, witnesses, and suspects. More specifically, it considers whether the evidence can be transferred between nation-states without negatively affecting the legitimacy, fairness, and reliability of the fact-finding procedure. The focus is on basic questions arising from the conflict between the criminal justice systems’ genuine interest in comprehensive and reliable fact-finding and the specific restrictions on fact-finding when evidence exists beyond a state border. The chapter first traces the historical roots of transnational access to evidence and provides an overview of current legal practices before using the German and U.S. legal frameworks as case studies to illustrate the impact of mutual legal assistance in a civil law and a common law jurisdiction. It then outlines new approaches to transnational access to evidence such as the framework of the European Union, with emphasis on safeguards for reliability and fairness of fact-finding.
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