united-states united-kingdom legal-history criminal-procedure
What is the history and international scope of the “Exclusionary Rule&quot;?
<p>The &quot;exclusionary Rule&quot; is a rule of criminal procedure in US courts that forbids admission of evidence obtained through violation of an accused person's fifth or sixth amendment rights, or through other unlawful action by the police or other governmental authorities.</p>
<p>The rule has been somewhat controversial, with some saying tht it causes courts to ignore reliable evidence of crime, and allow people guilty of crime to go free.</p>
<p>The rule has been justified as a method (some say the only workable method) of removing the incentive for the police to violate people's rights, and generally to disregard the law.</p>
<p>What is the history of the rule in the US, the UK, and England? What is the current state of the rule in other jurisdictions? Where is it followed less strictly or not at all?</p>
<p> An answer to <a href="https://law.stackexchange.com/questions/73670/are-there-any-legal-systems-where-guilty-until-proven-innocent-is-actually-a-t/74240?noredirect=1#comment160858_74240">Are there any legal systems where &quot;guilty until proven innocent&quot; is actually a thing?</a> turned out to be inappropriate to the question, because of a misreading on my part. I am therefore creating this question and copying much opf that answer here before deleting it in place. </p>
<p>The linked question currently contains the text:</p>
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<p>... there are non-US jurisdictions that allow defendants to be convicted on evidence that would be thrown out of a US court as unconstitutionally obtained, but the prosecution still has to present this evidence and use it to convince the court of the defendant's guilt.</p>
</blockquote>
<p>This leads to the question of what the scope of the rule is in these jurisdictions where some form of it applies.</p>

<h2>History of the Exclusionary Rule</h2>
<p>This rule, derived from the US <a href="https://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution" rel="nofollow noreferrer">Fourth Amendment</a>, was imposed (in its modern form) on US Federal courts by <a href="https://en.wikipedia.org/wiki/Weeks_v._United_States" rel="nofollow noreferrer"><em>Weeks v. United States</em>, 232 U.S. 383 (1914)</a> and on the states by <a href="https://en.wikipedia.org/wiki/Mapp_v._Ohio" rel="nofollow noreferrer"><em>Mapp v. Ohio</em>, 367 U.S. 643 (1961)</a>.</p>
<p>Prior to <em>Weeks</em> weaker and more limited versions of the rule had been imposed by <a href="https://en.wikipedia.org/wiki/Boyd_v._United_States" rel="nofollow noreferrer"><em>Boyd v. United States</em>, 116 U.S. 616 (1886)</a> (limited to business papers) and <a href="https://supreme.justia.com/cases/federal/us/168/532/" rel="nofollow noreferrer"><em>Bram v. United States</em>, 168 U.S. 532 (1897)</a> (limited to involuntary confessions).</p>
<p>In the UK versions of the rule had been followed in at least some cases from 1769, (see <em>Rudd's Case</em>, 168 Eng. Rep. 160 (K.B. 1775)).</p>
<h2>Non-US Jurisdictions</h2>
<p>Although the rule was derived from English practice and the English common law, it was made much more absolute in the US by the US cases <em>Weeks</em> and <em>Mapp</em>, interpreting the US Fourth and Fifth Amendments. Many other jurisdictions have not observed the same kind of strict exclusion as the US has since <em>Mapp</em>.</p>
<p>At one time or another, and in various cases, unlawfully obtained evidence has been accepted in court cases in England and Wales, Canada, Ireland, Germany, Israel, and Japan (but not in France or Scotland).  This is probably true in many other jurisdictions as well, but these are the ones mentioned in the sources quoted below.</p>
<h2>Scholarly Sources</h2>
<p>In <a href="https://www.foxwilliams.com/uploadedFiles/Illegally%20Obtained%20Evidence.pdf" rel="nofollow noreferrer">&quot;The Admissibility of Illegally Obtained Evidence&quot;</a> by
Peter Ashford it is said that:</p>
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<p>The UK is consistent across criminal and civil courts generally favouring the admission of the disputed evidence, albeit with sanctions</p>
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<p>and later that</p>
<blockquote>
<p>French civil courts do not generally admit evidence obtained by illicit means. The Supreme Court of the Russian Federation does not admit illegally obtained evidence as the constitution provides at art 50 that “in administering justice it shall not be allowed to use evidence
received by violating the federal law”</p>
<p>The statutory provision which governs the exclusion of evidence in crime is the Police and Criminal Evidence Act 1984 (PACE) s 78. This permits the court to exclude evidence on which the prosecution intends to rely if it appears to the court, having regard to all the circumstances, that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.</p>
<p>...</p>
<p><em>R. v P</em><br />
This case involved intercepted calls by the police who tapped the phone of a suspected drug offender. The court held that the fair use of intercept evidence at a trial, even where such evidence was unlawfully gained, did not breach the European Convention on Human Rights 1950 art 6, but that the defendants did have a right to challenge the evidence.</p>
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<p>In <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/comparative-analysis-exclusionary-rules-united-states-england" rel="nofollow noreferrer">&quot;Comparative Analysis of Exclusionary Rules in the United States, England, France, Germany, and Italy&quot;</a> (1999) by  Yue Ma  (<em>Policing</em> Volume: 22 Issue: 3  Pages: 280-303) it is said that:</p>
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<p>In the United States the exclusionary rule was created by the judiciary with the intent of ensuring that police do not harm suspects and defendants by engaging in illegal tactics to obtain evidence against them. In England the exclusionary rule remains largely discretionary. Except in cases in which confessions are obtained illegally, the courts are not obligated to exclude evidence even in the face of police irregularity in evidence gathering. In using judicial discretion the courts balance the interest of the public and the interest of the accused. Commentators have noted that in the past decade or so there has been a trend in continental European countries -- including France, Germany, and Italy -- to tighten control over police and provide more safeguards for citizens. One measure taken to accomplish this goal is the expansive use of the exclusionary rule. Although European countries may boast of a longer history than the United States in suppressing illegally obtained evidence, the United States has the longest history of using the exclusionary rule as a means of deterring police illegality. England, France, Germany, and Italy are viewing such an exclusionary rule more favorably as police illegality appears to have a corrosive effect on justice procedures under regimes that do not have such a rule.</p>
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<p>In <a href="https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=5036&amp;context=jclc" rel="nofollow noreferrer">&quot;The Exclusionary Rule Under Foreign Law&quot;</a> by G. Arthur Martin (1961: <em>Journal of Criminal Law and Criminology</em>, volume 52, issue 3) it is stated that:</p>
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<p>In Canada, the general rule is that evidence otherwise admissible is not rendered inadmissible by the fact that it was illegally obtained. This statement is, however, subject to the rules respecting the admissibility of confessions. Articles seized under an illegal search warrant or obtained
by a trespass are admissible,1 and evidence obtained by an illegal search of the person is also admissible.</p>
<p>In Kuruma v. The Queen, Lord Goddard, speaking for the Judicial Committee of the Privy Council, said:</p>
<blockquote>
<p>In their Lordships' opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was
obtained.&quot; {R. v. Lee Hai, 64 Can. C.C. 49 (1935); R. v. Honan, 20 Can. C.C. 10 (1912); R. v. Doyle, 12 O.R. 347
(1886).}</p>
</blockquote>
<p>...</p>
<p>Under the prevailing English rule, the fact that evidence is obtained through a trespass or other illegal search or seizure does not exclude it from evidence. This rule was accepted during the nineteenth century in two cases of a somewhat low order of authority. In <em>Derrington</em> {2 C.&amp;P. 418, 172 E.R. 189 (1826).}, the prisoner gave a letter to the turnkey, who promised to post it, but who instead gave it to the prosecutor. Theletter was received in evidence. In <em>Jones v. Owens</em>{34 J.P. 759 (1870)}, a constable illegally searched the defendant and found twenty-five young salmon in his pocket; it was held that the evidence was admissible on a charge of illegal fishing. Mellor, J., said:</p>
<blockquote>
<p>I think it would be a dangerous obstacle to the administration of justice if we were to hold, because evidence was obtained by illegal means, it could not
be used against a party charged with an offence.&quot;</p>
</blockquote>
<p>...</p>
<p>Other common law jurisdictions have almost invariably followed the traditional view and admitted evidence illegally obtained. ... Another example is Ceylon.</p>
<p>Irish courts seem to have undergone a change
of attitude. In an 1887 case, evidence was admitted
although illegally obtained, but in 1955 a judge
refused to admit evidence of fingerprints that had
been taken with the consent of the accused when
he was in custody on a different charge, since he
had not been told of his right to refuse consent.{People v. Lawlor, [1955-6] Ir. Jur. Rep. 38, 21 J. Crim. L. (Eng.) 263 (1957).}</p>
<p>...</p>
<p>[In France] Proofs are admissible in the criminal trial only if they have been legally secured and legally adduced. If the French law accepts all modes of proofs, it emphasizes, nevertheless, the way to proceed to get the proof, with the result that any proof illegally obtained must be dismissed from the judiciary proceedings.</p>
<p>...</p>
<p>In the German law of procedure, the &quot;rule of
free evaluation of evidence&quot; as laid down in section
261 of the Code of Criminal Procedure (hereinafter
called CCP) prevails. This provision reads: &quot;The
Court shall evaluate the evidence according to
its unlimited estimation and with due regard to
the general course of the trial.&quot; Section 261 is
dosely related to Section 244(ii), CCP, which
reads: &quot;The Court shall ex officio expand the
taking of the evidence to all facts and evidence
relevant to the exploration of the truth.&quot; Such
evidence includes that which has been obtained
by the police.</p>
<p>Hence the principle of free evaluation of evidence
permits the judge, and binds him at the same time,
freely to weigh the evidence without any ties to
strict rules. ...</p>
<p>To some extent, however, the judge's right to an unlimited evaluation of evidence is curtailed by the law. In certain cases it prohibits the judge, expressly or by nterpretation, from using certain evidence, especially evidence obtained in violation of legal commands or bans. But in the vast
majority of cases the use of such evidence is admissible in principle.</p>
<p>...</p>
<p>The rule prevailing in Israel is the common law
rule that, for the purpose of deciding whether
certain evidence is or is not admissible, the court
will not enquire into the methods by which that
evidence was obtained.{8 WIGMORE, EVIDENCE §2183 (3d ed. 1940).} The only exception to the rule is that the court will enquire into the circumstances under which a confession was made, so as to ascertain whether it was made freely and
voluntarily.
The sound principle underlying the rule is that
direct evidence which is relevant to the issue and
not privileged from disclosure should be available
to the trier of fact; the sanction for any criminal
offence and the remedy for any civil wrong which
may have been committed in obtaining that evidence are matters not for the law of evidence, but for the criminal law or the law of torts, as the case may be. Cases are known in which persons have been restrained by injunction from producing evidence wrongfully obtained{<em>E.g.</em>, Ashburton v. Pape, [1913] 2 Ch. 469 (C.A.).}; such an injunction
is, of course, a remedy in tort, and implies no
ruling one way or the other on the evidential issue.</p>
<p>...</p>
<p>It thus appears that where the common law as provided an exclusionary rule of evidence in the public interest and for reasons of public policy, the modern tendency is to divest that rule of general and unrestricted application, and to vest in the trial judge a discretion as to whether or not,
and to what extent, to apply the rule in the particular case before him</p>
<p>...</p>
<p>Should illegally seized evidence be admissible year.
to convict an accused? In Japan this question has been answered in the affirmative for many years. Back in 1899 the Supreme Court of Japan held, in a case under the Code of Criminal Procedure of 1890, that the defendant's pocket notebook, illegally seized by a policeman, was lawfully
received in evidence.{VoL 5, No. 1. Sup. Ct. Crim. Rep. 38 (1899).} In 1949 the Supreme Court held, in a case under the Code of Criminal Procedure of 1922, that it was lawful for the trial court to convict the accused by receiving a piece of physical evidence which had been seized with
illegal procedure. {Decision of the Supreme Court (3rd Petty Bench, D.ec. 31, 1949) (unpublished).} ...</p>
<p>Under the new Code of Criminal Procedure of
1948 there have been no Supreme Court decisions
precisely on point, but there are some high court
decisions which follow the traditional rule.</p>
</blockquote>
