Mecanismos de exclusão de provas indesejáveis ao processo penal: um estudo comparado

Abstract

This text presents two models of elimination of undesired evidence that operate in common law and continental law states.\xa0It\xa0analyses\xa0the\xa0mechanisms of blocking information from becoming evidence in a criminal trial which can be defined as the procedural instruments (solutions) adopted in a given model of criminal trial that allow for assessment and eventual elimination of inadmissible evidence as deemed to be undesired in the process of fact-finding.\xa0On the\xa0basis of a „model approach” it will be shown how such mechanisms of elimination (or blocking) of undesired evidence function in the United States and England, Germany, France, Poland and Italy. Also the stage of elimination will be analysed, as well as the type of procedure of applying a blockade. It will be explained in what ways the atomistic and holistic assessment of evidence work and what consequences they have. The last part of the text will show how the rationale for elimination of evidence in the form of illegality, unreliability or relevance, may result in various consequences depending on the seriousness of violation of law.\xa0These elements of analysis will allow to examine whether the continental and common law models of elimination of undesired evidence are coherent and effective and whether they allow for achieving the assumed goal of eliminating of undesired evidence.\xa0In the\xa0conclusions it will be shown that\xa0the final arbiter of admissibility of evidence in both procedural models is a judge and how this solution allows for weighting legally protected interests in every case. The argumentation presented in the article will also lead to an observation that in the continental model of elimination of undesired evidence it cannot be said that there is a full-fledged “mechanism” of blocking information from becoming evidence in a criminal trial.