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THE FUTURE OF FREE PROOF IN CRIMINAL CASES the law of his or her jurisdiction. Appellate court decisions ofthis nature, capable of restraining the judges fact-finding freedom, are legion in most jurisdictions. But this is only part of the story. Restrictions of the judicial fact-finding freedom can also emanate from rules barring the use of evidence obtained in violation of basic human rights. As is well known, rules of this genre have mushroomed in the aftermath of the traumatic experience with totalitarian and autocratic regimes of the past century. On first inspection it seems that rules prohibiting the use of illegally obtained evidence are unrelated to the judges’ freedom in processing evidence: they only narrow the pool of information available to them, and have nothing to do with the evaluation of evidence remaining in the pool. But this analytically correct observation misses the mark in situations in which judges become exposed to reliable but illegally obtained information that cannot fail but produce an impact on their mind. In this situation rules devoted to the admissibility of evidence mutate sub silentio into rules dealing with the evaluation of evidence, requiring judges to attribute no probative value to evidence that has affected their thinking. But can judges disregard knowledge that has been lodged in their mind? The answer depends on the character of psychological operations involved in evidence processing. If judges are capable of reasoning by attaching separate value to items of information, and then coming to a conclusion by aggregating or disaggregating these values, they can follow the law’s mandate and attribute no probative value to prohibited evidence. Empirical evidence suggests, however, that it is difficult for humans to disentangle the value of discrete information from global judgments, and to process received information in monadic fashion. It is true that when properly obtained evidence is clearly insufficient for conviction, the law’s mandate to exclude illegal but reliable evidence can be effective: judges must acquit the defendant. But when properly obtained evidence is compelling, they face a predicament: unless they recuse themselves, they must imagine what a judge uncontaminated by illegal information would decide. Would this hypothetical judge, they must ask themselves, find untainted evidence sufficient for conviction? Observe, however, that even if they successfully switch to this third person’s viewpoint, their decision no longer rests on their personal conviction which is in many jurisdictions a sine qua non. The third person perspective may even call for a factual finding contrary to what judges actually believe on the basis of illegal but credible information. It would thus not be surprising if empirical research revealed that in advancing reasons for their factual findings many judges simply omit any reference to illegal evidence even if it has actually influenced their verdict.’ Briefly, then, the exclusion of illegally obtained 5 The outlined problem does not arise, of course, if credible evidence was illegally obtained prior to the trial, provided that traces of this evidence are excluded from the file of the case and trial judges remain unaware of the prohibited information. + 199 «
