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In Germany, the rules governing the exclusion of evidence in criminal proceedings have changed considerably over the last decades. The courts follow a balancing approach and exclude evidence if there were arbitrary, serious, or deliberate infringements of the law. Thus, the standard is almost identical to the one applied to Fourth Amendment violations by the U.S. Supreme Court. Regarding electronic surveillance of the home or suspect, however, the focus in Germany is not on the warrant requirement but on the constitutionality of the statutory law allowing surveillance. As to the failure to give Miranda-type warnings, the German Federal Criminal Court adopted the rule developed by the U.S. Supreme Court. However, this is shaky ground because the Federal Court’s subsequent judgments on police interrogation do not follow a consistent understanding of the self-incrimination privilege.
Unlike in the U.S., deterring further misconduct of law enforcement officers is not the crucial reason for excluding evidence in Germany. Instead, this Article argues that it may be helpful to take a closer look at the nature of the fundamental rights that law enforcement officers have violated. If these rights intend to restrict the government’s access to information, the resulting evidence should be excluded – as both German courts and the U.S. Supreme Court have held in some cases
