Illegal evidence in criminal proceedings

brief comments

Abstract

The article examines the inadmissibility of illegally obtained evidence in criminal proceedings, in light of the innovation introduced by Article 5, LVI, of the 1988 Federal Constitution, which settled the longstanding doctrinal controversy between the pursuit of substantive truth and the protection of individual rights. Distinguishing, drawing on Nuvolone and Ada Pellegrini Grinover, between illegally obtained evidence and improperly obtained evidence, the author argues that the constitutional prohibition, though intended to safeguard privacy and physical and moral integrity, cannot prevail absolutely when in conflict with the accused's rights to liberty and life. He concludes that the prosecution may never rely on illegally obtained evidence, but the defense may exceptionally use it when indispensable, by virtue of the conflict among constitutional norms and the favor rei principle, excepting evidence obtained through physical violence, which remains inherently unreliable owing to its intrinsic evidentiary fragility.