This article explores some of the differences between the common law and civilian legal systems with respect to the admission of relevant evidence in criminal trials. Two types of evidentiary barriers to admission are considered: barriers to the admission of evidence that are believed to impede the fact-finding process, and barriers to admission imposed for reasons extraneous to the fact-finding process. The former are explored through a comparative analysis of the admission and use of derivative (hearsay) evidence. The latter are explored through a discussion of the exclusionary mechanisms available for evidence obtained as a result of improper searches and seizures in jive countries: England, Canada, and the United States (from the common law tradition), and France and Germany (from the civil law tradition). This article contends that the dangers of reliance on derivative evidence are generally guarded against in both legal systems, although it is the structure and functioning of civilian courts, rather than formal rules of evidence, that have this effect in civil law jurisdictions. This article also contends that, unlike the treatment of derivative evidence, the mechanisms for excluding evidence obtained as a result o fan improper search and seizure are not closely tied to the legal system in use in a jurisdiction, but rather to other aspects of a country's legal and constitutional structure.
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Howard L Krongold, "A Comparative Perspective on the Exclusion of Relevant Evidence: Common Law and Civil Law Jurisdictions" (2003) 12 Dal J Leg Stud 97.