Let us now turn to the question of whether exclusionary rules may or should be applied in abbreviated proceedings. If we consider the various rationales of exclusionary rules, it appears obvious that there exists no persuasive reason for limiting their applicability to cases in which a full trial takes place. Any such limitation would diminish the incentive for police to abide by procedural law, because they could hope that the evidence obtained illegally could lead to the conviction of the suspect in an abbreviated proceeding. There would be no vindication or compensation for the violation of the suspect’s rights. And if a sanction is imposed on the suspect in a criminal process, the officials involved in that proceeding would have to take into account the tainted piece of evidence, thereby putting into doubt the legitimacy and integrity of the process. If the rationales of the exclusionary rule apply to abbreviated proceedings, so should the exclusionary rule itself. In fact, any evidence that is inadmissible at trial should be instantly removed from the process. Ideally, such evidence would not only be inadmissible in any court proceeding but prosecutors should also disregard it when deciding on whether to file an indictment.

By extending a strict exclusionary rule to abbreviated proceedings, however, the problem of reducing the factual basis of the decision is transferred to these proceedings. In other words, the (remaining) truth-orientation of abbreviated criminal procedures is damaged inasmuch as relevant evidence is removed from the consideration of the decision-maker. To reduce this problem, the arguments in favor of exclusion of tainted evidence should be weighed against the interest in basing the decision on an approximation to the “real” facts of the case. This leads to a further complication, however: A proper balancing of interests can take place only at the trial stage, when all facts about the violation have been disclosed and it has become clear to what extent the evidence in question is needed for arriving at a fair disposition of the case. Yet, the prosecutor must make her decision on a provisional factual basis and without the benefit of argument from the defense. Under these circumstances, it is not unethical for a prosecutor to rely on evidence of doubtful legality and present it in court, waiting to see whether the defense objects and what the judge’s ruling may be.

For assessing the operation of the exclusionary rule in abbreviated proceedings, it is useful to take a closer look at the existing variants of such proceedings, which all have in common that a sanction is imposed on the offender without a complete presentation of all relevant evidence in a public trial. Given the vast array of different criminal proceedings without a full trial, there is no point in making general statements about “the” abbreviated criminal process. Yet, we can distinguish three basic types of abbreviated proceedings:

Forms of prosecutorial sanctioning can be found in many legal systems. Although prosecutors normally cannot make formal findings of guilt and cannot impose criminal punishment, they dispose of tools such as deferred prosecution, conditional dismissal of charges, informal probation, and so-called transactions. They all have in common that a sanction of some kind (a fine, a compensation payment to the victim, or a probation-type set of obligations) is imposed on a suspect with his consent; if the obligation is fulfilled, there will be no formal prosecution and trial. The obligation imposed on the suspect can only be interpreted as a response to the offense he is alleged to have committed although his guilt has not been proved in court. In this type of proceeding, there is no presentation of evidence and no formal hearing. Still the question remains to what extent the prosecutor needs a factual basis for her decision and how that factual basis can be created.

The second type of abbreviated proceedings can be exemplified by the “guilty plea” typical of the Anglo-American criminal process. In accordance with a long common law tradition, the defendant at the beginning of the judicial process is asked to declare whether he is guilty or not guilty. If his plea is “guilty” and if the judge accepts the plea after a summary examination of its voluntariness and its “factual basis”, no evidence concerning the defendant’s guilt will be presented in court; his formal declaration is regarded as a sufficient basis for the court’s finding of guilt. The court will then proceed directly to sentencing the defendant. The defendant’s plea of guilty is often preceded by negotiations between the prosecutor and the defense lawyer. The prosecutor will usually offer some incentive for the defendant to plead guilty, such as a reduction of the original charges or a recommendation for a lenient sentence. On the other hand, the prosecutor may point out that a very severe sentence might be imposed if the defendant goes to trial and is found guilty.

In other legal systems, where the notion of “pleading guilty” has not been established, a functional equivalent is a joint motion of the prosecutor and the defendant to the judge for the imposition of an agreed-upon sentence. The judge is typically free to accept or reject the proposal. In the latter case, a trial will be held unless another disposition can be found. As in the guilty plea system of the common law jurisdictions, no evidence is taken in court, but the acceptance of the sanction by the defendant is seen as a sufficient legitimization of the proposed disposition.

The common denominator of the third type of abbreviated proceedings is the fact that the defendant’s conviction is based on the results of the pretrial investigation. This kind of disposition can take several forms. One common sub-type is the so-called penal order: The prosecutor drafts a judgment including a sentence based on the police file of the investigation. The draft order is then forwarded to a single judge, who can sign or reject it. If the judge approves and signs the order, it becomes final and acquires the effect of a regular court judgment unless the defendant files an objection or appeal in due course. In case of an objection, the matter is set for trial in court. The penal order’s main field of application is minor offenses, for example, small theft and traffic violations. The sentence to be imposed by penal order is typically limited to non-custodial sanctions (including conditional prison sentences).

Another sub-type is a summary trial before a judge with only a minimum of evidence-taking, or with none at all. For example, in Italy the judge can, with the defendant’s consent, proceed to a giudizio abbreviato. In that proceeding, the judgment can be based on the file of the prosecutorial investigation, but the judge may also interrogate individual witnesses if she deems that necessary for coming to a firm conclusion about the defendant’s guilt or innocence. In the Norwegian abbreviated trial, the judge holds a hearing with only the defendant present and passes sentence immediately after the defendant has confessed to the facts named in the indictment. In either case, the incentive for the defendant to submit to the abbreviated disposition of the case is a sentence reduction.

Germany has a similar type of disposition which is, however, dressed up as a formal trial. In the Verständigung procedure, the defense lawyer and the judge(s) of the trial court conduct negotiations before the beginning of (or sometimes during) the trial. The judge, who is familiar with the file of the pretrial investigation, makes a “predictive” offer of imposing a sentence within a certain range if the defendant comes forward with a confession at the trial. If both sides agree and the prosecutor does not veto the deal, the court is bound by the offer. The trial then begins with the defendant making the confession as agreed, and the court may (but often does not) take additional evidence. If everything goes according to plan, the defendant then receives the agreed-upon sentence and the case is closed.

The feature that differentiates this type of a “shortcut to justice” from the guilty plea is the fact that the defendant’s consent is not the sole legitimating basis for a finding of guilt. The court relies on the file containing the results of the pretrial investigation, on the defendant’s confession, on additional witness testimony, or on a combination of all three. In any event, there is supposed to exist a sufficiently reliable factual basis for the judgment even though no regular trial has been held.

With regard to prosecutorial sanctioning, we can start from the rule (developed above) that the prosecutor should not base her decisions on evidence that would not be admissible in court. Consequently, proposals for conditional dismissal or pretrial probation and similar sanctioning mechanisms should be made only if the prosecutor can reasonably expect to obtain a conviction at trial based on admissible evidence. If the evidence, minus those items that are likely to be excluded, is not sufficient to prove the defendant’s guilt beyond a reasonable doubt, it would be oppressive to propose to the suspect to fulfill certain obligations (such as paying a fine) although he would probably be acquitted if the prosecutor brought the case to trial. So, in the example Case 2, if the prosecutor does not have much evidence for the defendant’s involvement in the burglary beyond the inadmissible confession, it would be unethical for her to make the defendant an offer to dismiss his case if he made a payment or provided several hours of unpaid work in a public interest project. It is conceivable that the defendant might still accept the offered disposition in order to get rid of the threat of prosecution or because he wishes to atone for a moral wrong he committed; but the prosecutor should at least candidly tell the defendant that there is a low likelihood that he would be convicted at trial.

As mentioned above, however, the prosecutor has some leeway if the admissibility of illegally obtained evidence is dependent on a balancing of the seriousness of the procedural violation against the interest in truth-finding in the criminal process. Since this balancing must in the last resort be undertaken by the court based on the totality of the circumstances, the prosecutor may act on a reasonable possibility that the evidence will eventually be admitted. She may therefore make the suspect an offer for, e.g., deferred prosecution or conditional dismissal even though she cannot be certain that some illegally obtained evidence would be admitted by the trial court.

If the defendant enters a guilty plea or accepts a finding of guilt without prior evidence-taking, his declaration, as we have seen, is regarded as a sufficient basis for conviction. Since no evidence is presented to the court, exclusionary rules logically do not have a direct effect on the proceedings following the guilty plea. But does that mean that grave procedural violations that occurred in the investigation phase become irrelevant if the defendant accepts the prosecutor’s offer to plead guilty to a reduced charge or in exchange for a recommendation of a lenient sentence? It is not quite so simple. First, as we have seen above, the prosecutor should not base her charging decision on clearly inadmissible evidence. That rule also extends to decisions concerning the plea bargaining process. Consequently, the prosecutor should be ethically precluded from offering the defendant a plea deal if she knows that evidence critical to the prosecution case would be excluded if the case went to trial. In practice, however, if the prosecutor knows that something “went wrong” during the investigation and that key evidence may be (or: definitely is) inadmissible, she may indeed offer the defendant a particularly attractive deal so as not to lose the case altogether.

That is a problem of prosecutorial ethics, but it may also lead to a legal issue: Can one say that a guilty plea is voluntary if the defendant wrongly assumes that the prosecution has admissible evidence sufficient to prove his guilt, while in fact key evidence is inadmissible? Take Case 2 as an example again: If the defendant mistakenly thinks that his forced confession at the police station can be used against him at the trial and that he therefore does not have the slightest chance of being acquitted, and then pleads guilty - is that plea voluntary? One could argue that the defendant was not forced to plead guilty and that it was his free decision to waive the chance of an acquittal and to acknowledge his guilt. But doesn’t voluntariness presuppose having the information necessary to make an intelligent decision? One would probably not hesitate to invalidate a plea if the prosecutor had intentionally misled the defendant about the availability of incriminating evidence. But in some jurisdictions the defense is asked to plead without being given full access to relevant information. The prosecutor may have to disclose evidence that could be used by the defense in its favor at trial, but he need not grant the defense lawyer discovery of incriminating evidence. If the prosecutor’s bag of evidence contains mainly inadmissible items, would it count as deception to even make a plea offer to the defense?

The answers to that question may well differ, depending on each jurisdiction’s rules on the information that must be available to the defendant before he decides on the plea. But as a general rule, the defense should not be forced to plead “blind”; and in particular the defendant should be alerted to facts that might jeopardize the admissibility of prosecution evidence. Only if the defense lawyer is aware of the relevant facts concerning (potential) inadmissibility and still - based on his own assessment of these facts - advises his client to plead guilty, this may be regarded as a legitimate tactical choice and should be respected as a voluntary plea.

One may have doubts, however, whether there can ever be a valid acceptance of the use of a forced confession as evidence. German law provides that a statement resulting from threats, force, deceit, or other prohibited means is inadmissible even if the defendant later consents to its use at trial. But even that strict standard only rules out the admission of such evidence at trial and does not prevent the defendant, after proper information about the inadmissibility of the prior statement, from making another confession to the same facts. Nor does the ban on using a forced confession stand in the way of the defendant acknowledging guilt, for which he may have independent reasons.

Finally, the question arises whether exclusionary rules have an impact on the various forms of abbreviated trials. To the extent that the judge actually takes evidence before making a decision, it is obvious that she must not use tainted evidence that would not be admissible at a full trial of the matter. But what about the proceeding in which the judge bases the decision only on the written record of the pretrial investigation? In that instance, taking judicial cognizance of the file of the investigation replaces the taking of evidence. The judge must consequently check the file to see whether certain evidence has been obtained illegally and would therefore be subject to exclusion. If that is the case, the judge must not base the decision on this evidence; she may consequently convict the defendant only if the remaining evidence apparent from the file is sufficient to establish his guilt beyond a reasonable doubt.

But perhaps the judge’s use of evidence that would be inadmissible at a full trial might be legitimized by the defendant’s advance consent? In most jurisdictions, an abbreviated procedure is available only with the defendant’s consent. That consent does not refer to a finding of guilt (as in the guilty plea proceeding) but only to the judge’s authority to dispense with taking evidence and to rely instead on the information contained in the police file. But does the defendant’s consent then imply that the judge should be permitted to use any information she can find in the file, including illegally obtained evidence, or only such information as could also be introduced at trial? As a rule, the defendant’s consent should be interpreted as extending only to the results of an investigation conducted in accordance with applicable legal rules. Returning to example Case 2, the defendant’s declaration that the judge may issue a judgment based on the police file cannot be understood to extend to the confession extorted from him by the threat of force. This may be different only if the defendant and his lawyer were explicitly informed that the file contains evidence that is likely to be inadmissible and have nevertheless given consent to the use of that evidence.

The same standard should apply in the “penal order” type of proceeding. Although the prosecutor pre-formulates the judgment, the judge must not authorize it unless it is supported by the results of the investigation as documented in the file. This means that the judge is expected to read the file and examine what admissible evidence would be available at a trial. Only if, based on a summary evaluation, this evidence would be sufficient to support a finding of guilt may the judge issue the penal order. Even in this most abbreviated proceeding, then, the exclusion of evidence plays an important role: It removes illegally obtained evidence from the file on which the judge must base her decision on whether to issue the penal order as requested by the prosecutor.

As with prosecutorial decisions, however, the virtual exclusion of evidence from the file is limited to clear cases. The judge has more leeway if the facts as they appear from the file are such that they require a balancing of conflicting interests before a decision on exclusion can be made. In that situation, the judge should conduct a provisional balancing based on the limited information available at the time, which may lead to acceptance of some evidence that might eventually be excluded after full argument at a trial.

In conclusion, it can be said that a judgment in an abbreviated proceeding (including a penal order) must in the normal course of events not be based on evidence that would be inadmissible at a regular trial.

Corresponding author: Thomas Weigend , Universität zu Köln, Germany. Email: thomas.weigend@uni-koeln.de.