Why exclusionary rule

Generally, if evidence was unlawfully obtained, a defense lawyer will make a motion to suppress it. For instance, if police interrogated the defendant illegally, any physical evidence derived from the interrogation may be excluded.

Notably, if a confession was wrongfully coerced from the defendant and they provided information concerning the location of certain evidence, that evidence would be inadmissible, even if the police had obtained a valid search warrant. New York courts have typically offered greater protection under the exclusionary rule in criminal cases than federal courts.

But there are some situations in which evidence subject to the exclusionary rule might still be admissible. But perhaps the broad Greek rule can be explained by the fact that Greece aims at making sure that no evidence based on human rights violations will be accepted by the courts, even when this may overcompensate individual litigants in some cases.

Furthermore, Greek courts have occasionally strayed from the broad rights-based approach to exclusion. Another example of a rights-based approach to exclusion is that of Ireland—at least, it was until Yet after criticism of the broad Irish exclusionary rule by a number of judges and policymakers, the Irish Supreme Court in drastically reduced its scope, holding that an inadvertent breach of the law in the gathering of evidence would not lead to exclusion.

The Greek and Irish systems of exclusion suggest that even seemingly absolute, rights-oriented approaches to exclusion at times give way to exceptions or balancing tests. Several legal systems have refrained from defining a single rationale for their exclusionary rules.

Three of the countries discussed in this volume—Switzerland, Germany, and Taiwan—are examples of such hybrid systems. The German and Swiss models have been grounded on the need to vindicate individual rights as well as to protect the rule of law.

In Taiwan, the judiciary introduced an exclusionary rule in , which was subsequently codified by the legislature as part of a broader effort to break with the legacy of a decade-long authoritarian regime. The rationale for the Taiwanese exclusionary rules is to protect individual rights and safeguard the rule of law and judicial integrity.

The balancing takes into account a host of factors, but ultimately aims to weigh the protection of individual rights against the public interest in the enforcement of criminal law. The German and Swiss approaches to exclusion similarly follow a dual approach, with some rules, such as those pertaining to coerced confessions, resulting in mandatory exclusion, while others balance the public interest and individual rights.

These systems share a tendency toward categorically excluding evidence if certain very important rights have been violated. With regard to standing , Germany pursues a strict approach, insisting that only the person whose rights were violated can invoke the exclusionary rule. For example, the Federal Court of Justice ruled that a defendant cannot demand the exclusion of the incriminating statement of a witness who had not been informed of his privilege against self-incrimination when interrogated by the police.

Looking at our findings from a comparative standpoint, the rationales that different systems rely upon do not fall into an expected pattern. No clear divide exists between adversarial and inquisitorial systems. A trend we do identify, however, is that for most systems, particularly those that have adopted exclusionary rules relatively recently, the dominant rationales for exclusionary rules are to protect individual rights and promote judicial integrity rather than to deter misconduct or promote the search for truth.

This development can probably be attributed to the growing influence of international human rights law and to an emphasis on the rule of law in countries transitioning away from authoritarian regimes. Not surprisingly, we have not encountered a legal system that exactly mirrors one of the ideal types construed in section 3.

To begin with, virtually all the countries we examined pursue more than one goal when excluding evidence, even if one objective may be dominant; and the majority of systems rely on a mix of rationales to support their exclusionary rules. Of course, quite a few of our findings comport with the ideal-typical models. On the other hand, adopting the same rationale does not necessarily lead to identical doctrines of exclusion, as can be seen from the examples of Israel and Canada.

Instead, one and the same rationale can justify a variety of approaches to exclusion, from balancing to categorical exclusion and from relatively narrow to relatively broad rules. These variations can easily be explained by the fact that even legal systems which emphasize a single basic rationale for exclusion reasonably take other considerations and interests into account when shaping rules on individual issues.

Certain overriding considerations appear to influence exclusionary decision-making to a larger extent than adherence to basic rationales. For example, legal systems are most likely to use absolute exclusionary rules with respect to violations of certain fundamental rights, such as the right not to be subjected to torture. When rationales coincide, and especially when the truth-seeking rationale weighs on the side of exclusion, legal systems are most likely to exclude evidence.

Policy considerations can also be expected to have a great influence on the design of actual exclusionary rules. In sum, we can say that a strict doctrinal adherence to particular rationales and purposes of exclusion of evidence plays a lesser role in the construction and application of exclusionary rules when compared to considerations of fairness, procedural expediency, and an interest in keeping a balance between the truth-orientation and the rights-orientation of the criminal process.

The official purposes of excluding evidence are of course welcome arguments for supporting individual sub-rules and court decisions; but they are not determinative.

Judges who shape and apply legal rules in difficult areas do not simply apply doctrines but take real life and basic notions of fairness into account. And that is probably how it should be. Greece is an example of such an absolutist approach to exclusion. See Giannoulopoulos, , p. Macula, at 3; R v. Advocate JC 66, 83 Scot. See, e. Germany, case no. Elkins v. Basing a conviction on evidence that was obtained in an illegal manner or by means of a substantial violation of a protected human right allows the investigation authorities to enjoy the fruits of their misdeed and it may create an incentive for improper acts of interrogation in the future.

Admitting such evidence may be seen as the court giving approval to the aforesaid illegality and being an accessory, albeit after the event, to the improper conduct of the investigation authorities.

Consequently, in certain circumstances admitting the evidence in court may prejudice the fairness and integrity of the judicial process. This rationale has been particularly influential in countries emerging from authoritarian regimes and transitioning to liberal democracy.

In those countries, the exclusionary rule has been valued for curtailing government abuse and for affirming that even government officials are subject to legal restraints. See Turner, See Slobogin, at — In Spano v. New York , US , , the U. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law. United States v. Leon , US , ; Hudson v.

Michigan , US , ; Herring v. United States , US Michigan , US , , ; Herring v. United States , US , Hudson v. Michigan , US , , Herring v. Alschuler, at reviewing U. Israel Supreme Court, Yissacharov v.

Silverthorne Lumber Co. Weeks v. United Kingdom , case no. Germany , case no. American Convention on Human Rights, art. For example, an intrusive bodily search of a suspect conducted by police without probable cause and without a warrant may produce evidence of drug-dealing i. One might consider affording human dignity a special status; but given the vague contours of human dignity, a rule of absolute exclusion whenever human dignity had been infringed may lead to inappropriate results.

Grant [] 2 SCR. Canale [] 91 Cr. Nasogaluak [] CCC 3d 52 Alta. An exception to this presumption would be a second confession following an initial coerced confession.

Studies of wrongful convictions have shown that, once a person has given a false confession under pressure from the police, the coercive influence of the first confession might lead to a second false confession, even when police are no longer applying deceptive or coercive tactics.

Leon , US ; Illinois v. Krull , US , ; Arizona v. Evans , US 1, 11 ; Herring v. Canale 91 Cr. Levine et al. Wong Sun v. Stuart, at Wilson [] CarswellOnt citing unnamed case in which trial judge excluded evidence where officer relied on an invalid warrant in good faith ; R v. Yukon Terr. Grant [] 2 SCR Can. Interestingly, the Canadian Court argued that the admission of evidence that would have been inevitably discovered has a lesser impact on the rights of the accused—a position criticized by some Canadian scholars; see Stuart, at Edwards [] 1 SCR ; see also R v.

Pasian [] ONSC And if an objective is to vindicate Charter rights generally and not in the individual case it makes no sense for the framers of s. See Levine et al. See Costello v. Brown v. Illinois , US , — ; Murray v.

The requirement that the prosecution must prove the absence of bad faith … wholly fails to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Williams , US , — Rakas v. Illinois , US , — ; Fisher v. United States , US , — Payner , US Illinois , US , — Giannoulopoulos, at , —; see also Kaissis, at — Additionally, some courts recognize an "expanded" doctrine, in which a partially tainted warrant is upheld if, after excluding the tainted information that lead to its issuance, the remaining untainted information establishes probable cause sufficient to justify its issuance.

Related to the independent source doctrine, above, and also adopted in Nix v. Williams , the inevitable discovery doctrine allows admission of evidence that was discovered in an unlawful search or seizure if it would have be discovered in the same condition anyway, by an independent line of investigation that was already being pursued when the unlawful search or seizure occurred. In cases where the relationship between the evidence challenged and the unconstitutional conduct is too remote and attenuated, the evidence may be admissible.

See Utah v. Brown v. Illinois , cited in Strieff , articulated three factors for the courts to consider when determining attenuation: temporal proximity, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. The Supreme Court recognized this exception in Harris v.

New York as a truth-testing device to prevent perjury. Even when the government suspects perjury , however, it may only use tainted evidence for impeachment , and may not use it to show guilt. Due to qualified immunity , the exclusionary rule is often a defendant's only remedy when police officers conduct an unreasonable search or violate their Miranda rights. Even if officers violate a defendant's constitutional or statutory rights, qualified immunity protects the officers from a lawsuit unless no reasonable officer would believe that the officers' conduct was legal.

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