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Much has been written about guilty pleas and plea bargaining in common law countries and German confession bargaining,1 yet there has been relatively little comparative analysis of cooperation agreements, a form of negotiated resolution of mainly serious criminal cases, which, unlike plea bargaining, has as its goal the securing of investigative help and trial testimony theoretically aimed at bringing leading players in organised crime to justice.
What consequences should state wrongdoing in the course of gathering evidence in a criminal investigation have on its admissibility in the criminal trial or usability as a foundation for the criminal judgment? Answering these questions sheds much light on the core features of criminal justice and its theoretical as well as constitutional underpinnings. In this chapter, we will compare the approach to exclusion or non-use of evidence taken in the predominantly English-speaking world of the common law with that taken in Germany. Under the common heading ‘exclusionary rules’ or ‘exclusion of evidence’ we will address both the common law perspective of excluding evidence ex ante (i.e. by declaring it inadmissible) and the German perspective of taking evidence first, but not using (‘excluding’) it for the evaluation of the merits of the case (Beweisverwertungsverbote). After laying out the theoretical framework, we focus on the development of balancing tests and the factors which may and may not be taken into account, and come to some comparative conclusions. We will, however, need to omit a discussion of specific grounds for excluding evidence as well as some other important issues: (1) whether judges and juries, who are aware of excluded evidence, actually are able to ignore this knowledge in passing judgment; (2) the extent to which exclusions actually lead to dismissals or acquittals, or whether they are mainly used by the defence to obtain a mitigated sentence.