united-states criminal-law evidence rules-of-evidence warrant
Can evidence that 100% proves guilt (but was obtained 100% illegally) sway a jury to convict?
<p>Raymond the Rapist raped Dan the Dad's child. Dan takes Raymond to court, but there's 0 evidence, and it's basically a he-said-she-said deal, and there's nothing Dan can do to convict Raymond. So Dan, not caring about what happens to him, takes matters into his own hands, and breaks into Raymond's home, and finds irrefutable evidence of Raymond's crime (e.g. photos on his phone of the incident, etc.). Knowing that it might be inadmissible in court (since there was no warrant or anything), Dan uploads it publicly online and sends it to news media outlets.</p>
<p>Now Dan will obviously face some charges I assume. But that aside, regarding the case against Raymond, my main question is: will the evidence be allowed to sway the court?</p>
<p>On one hand, evidence that was illegally obtained (such as by a cop without a warrant) is inadmissible in court (if I'm not mistaken). On the other hand, the irrefutable evidence of the crime is out there for the entire public, and the jury can't possibly be asked to ignore it and pretend like Raymond isn't guilty beyond a reasonable doubt. So yeah...what's the answer?</p>
<p>Edits:</p>
<ol>
<li>In my example, I used Dan the civilian. But I'd appreciate it if you could address the case that Rob the Rogue Cop also ignores the law to just obtain the evidence and whistleblow it to the public.</li>
<li>Imagine the evidence is literally an explicit video of Randy raping the child. Basically, as close to irrefutable as possible.</li>
<li>Imagine the case becomes extremely high profile due to widespread media coverage (because it's such a horrible story that was sent to news media outlets, or because Raymond is very famous). Basically, it's impossible to find relevant jurors/judges unless they live under rocks.</li>
</ol>

<p>The 4th Amendment exclusionary rule applies automatically in cases where law enforcement obtains evidence illegally (subject to exceptions not applicable here).</p>
<p>In its 1920 decision in <em>Burdeau vs. McDowell,</em> the U.S. Supreme Court held that the 4th amendment is not applicable to searches by private parties, even when such searches are clearly illegal. This rule doesn't apply, however, if the private citizens was acting as an agent of the government. A more recent case reaffirming and clarifying <em>Burdeau</em> is <em>United States v. Jacobsen</em> 466 U.S. 109 (1984) in which a private courier finds drugs in a package and shows it to police who test the contents (the search was upheld as valid).</p>
<p>If the defendant makes that argument, the defendant seeking to exclude the evidence bears the burden of proving by a preponderance of the evidence that the private citizen acted as an agent of the government. <em>U.S. v. Feffer</em>, 831 F.2d 734 (7th Cir. 1987).</p>
<p>Another case discussed <a href="https://www.tdcorg.com/article/but-they-did-it-first-the-private-search-doctrine/" rel="noreferrer">here</a> notes that:</p>
<blockquote>
<p>As it relates to computer files, states still differ on how broad the
application of the Private Search Doctrine runs, but all seem to agree
that if a document or photo has been opened by a private party, an
officer can review that file or photo without a warrant. In <em>People v.
Wilson</em>, 56 Cal. App. 5th 128 (2020), police opened 4 images they
received from NCMEC (the National Center for Missing and Exploited
Children) who received the images in a CyberTip from Google. Neither
NCMEC nor Google had opened these images in this case, but all 4
images had been reviewed by Google in the past and identified
previously as child porn by their matching hash values. So here, the
officer’s actions—consisting of opening the electronic files submitted
to it by NCMEC and viewing the four images attached to Google’s
Cybertip—did not exactly replicate Google’s private actions. The
Wilson court set out to determine the degree to which the officer’s
additional invasion of Wilson’s privacy exceeded the scope of Google’s
private search (the search of his emails against known hash values).
Before the officer even received Wilson’s photographs, Google had
already reviewed identical images in the past; scanned all of Wilson’s
electronic communications to search for content with matching hash
values; flagged four of Wilson’s images as matching images Google had
previously observed; classified the matching images as depictions of
prepubescent minors engaged in sexual acts; forwarded all four images
to NCMEC as part of a Cybertip report; and terminated Wilson’s
account. The Jacobsen case above explained that, “[t]he Fourth
Amendment is implicated only if the authorities use information with
respect to which the expectation of privacy has not already been
frustrated.” <em>Id</em>. at 117. Because Google’s actions already frustrated
any expectation of privacy Wilson possessed in the four photographs at
issue, no privacy interest remained in the four images, so no
expectation of privacy was violated.  <em>Wilson</em> at 219. Because the
assigned hash values, or “digital fingerprints,” are representative of
the contents depicted in the photographs themselves, the government
gained no new material information by viewing the images. The agent
merely confirmed Google’s report that Wilson uploaded content
constituting apparent child pornography. <em>Id</em>. at 220.</p>
</blockquote>
<p>When someone who is not law enforcement obtains evidence illegally, the court sometimes engages in a non-constitutional discretionary balancing test to determine if the evidence is admissible. Sometimes it comes in, sometimes it doesn't. I'll find a case setting forth the exact test if I have time.</p>
<p>The fact that evidence is &quot;irrefutable&quot; (not that there is any such thing) and widely publicly known is absolutely irrelevant. The fact that a juror knows it would be grounds for excusing the juror for cause and for moving the venue of the trial where they can find enough jurors who aren't familiar with the evidence if they can't manage it in the usual venue.</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<h3>Evidence obtained in a manner that infringes a person's <em>Charter</em> rights is not automatically excluded</h3>
<p>Evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the <em>Canadian Charter of Rights and Freedoms</em> shall be excluded if it established that, having regard to all circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute: <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art242.html" rel="nofollow noreferrer"><em>Charter</em>, s. 24(2)</a>.</p>
<h3>The <em>Grant</em> test</h3>
<p>The Supreme Court of Canada has developed a three-prong test to judge whether the admission of the evidence would bring the administration of justice into disrepute and thus require exclusion. See <em>R. v. Grant</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do" rel="nofollow noreferrer">2009 SCC 32</a>. The judge must consider:</p>
<ol>
<li>the seriousness of the <em>Charter</em>-infringing conduct;</li>
<li>the impact of the breach on the <em>Charter</em>-protected interests of the accused; and</li>
<li>society's interest in the adjudication of the case on its merits.</li>
</ol>
<p>Behind each of these is much jurisprudence developing its meaning. I only present the above as a summary.</p>
<h3>Application to your hypothetical</h3>
<p>In the circumstance where a &quot;rogue cop&quot; &quot;<em>ignores the law</em> to just obtain the evidence and whistleblow it to the public,&quot; I predict that this would be considered very serious <em>Charter</em>-infringing conduct, towards the most serious infringing conduct imaginable. I also predict the impact of the breach would be considered profoundly intrusive. Breaking into a person's home to obtain evidence is towards the more intrusive breaches of Section 8 of the <em>Charter</em>. And &quot;[i]t is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer&quot;: <em>R. v. Morelli</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7847/index.do" rel="nofollow noreferrer">2010 SCC 8</a>. Given that the seriousness of the <em>Charter</em>-infringing conduct and the impact of the breach on the <em>Charter</em>-protected interests both pull strongly towards exclusion of the evidence, the third line of inquiry will rarely tip the balance in favour of admissibility.</p>

<p>You need to understand that laws disallowing evidence that was obtained illegally are not there to protect criminals - they are there to protect innocent citizens.</p>
<p>If Raymond is guilty only in Dan’s sick imagination, then the law wants to protect Raymond from Dan breaking into his home. And the way to do this is to tell Dan quite clearly that if he breaks into Raymond’s house then he will be arrested and punished for breaking and entering, and any evidence found will not be used.</p>
<p>It is important that finding evidence makes no difference, since Dan is convinced that evidence will be found. So Raymond’s home must be protected by law from any illegal search, whether he is guilty or innocent.</p>

<p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a></p>
<p>Evidence obtained illegally by non-law-enforcement actors can be used both in criminal and civil trials.</p>
<h2>Criminal procedure: anything goes</h2>
<p>There are quite a few &quot;fruit of the poisoned tree&quot;-style exclusion rules, introduced by <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006071154/LEGISCTA000006167430/#LEGISCTA000006167430" rel="nofollow noreferrer">articles 170 through 174-1 of the code of penal procedure</a>. All of them target &quot;acts and pieces of the procedure&quot;. Those include anything done by the prosecution such as police reports, but not acts by private parties outside the criminal procedure. Therefore, third-party evidence falls under the default rules that any piece of evidence can be offered without any specific form. (The evidence can still be discussed in terms of authenticity, probative value and so on.)</p>
<p>That rule was written down in <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000025470795?init=true&amp;page=1&amp;query=11-88.118&amp;searchField=ALL&amp;tab_selection=all" rel="nofollow noreferrer">Cass. crim., 7 mars 2012, n° 11-88.118</a>. It was hardly new at the time, and I believe it is a rather well-settled doctrine at this point. You could argue that the current statute violates ECHR's article 6 right to a fair trial, but that’s a long-shot attempt - the legislator and/or Cour de Cassation will probably not budge until and unless a case succeeds at the ECtHR.</p>
<p><em>There was <a href="https://en.wikipedia.org/wiki/Bettencourt_affair" rel="nofollow noreferrer">a high-profile case in 2009-2012</a> similar to the hypothetical question in the OP. Liliane Bettencourt, a billionnaire, was secretly (and illegally) recorded by her butler saying incriminating stuff, and the tapes were published by the media. Part of the affair was how, alledgedly, someone in Bettencourt's entourage profited off her senility to extract money out of her. Even though the recordings were 100% illegal, they were used to start judicial procedures against that person.</em></p>
<h2>Civil procedure: it depends</h2>
<p>The statutory basis is rather thin and found at <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410102" rel="nofollow noreferrer">article 9 of the code of civil procedure</a>:</p>
<blockquote>
<p>Il incombe à chaque partie de prouver conformément à la loi les faits nécessaires au succès de sa prétention.</p>
</blockquote>
<blockquote>
<p>Each party bears the burden to prove according to law the facts necessary to the success of their claim.</p>
</blockquote>
<p>&quot;According to law&quot; is not an extremely detailed explanation of what does and does not fly. My general impression eyeballing the jurisprudence is that clearly illegal stuff (typically: undisclosed phone recordings) gets excluded, but borderline stuff gets admitted.</p>
<p>A 2021 case, <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000044327036/" rel="nofollow noreferrer">Cass. soc. 20-12.263</a>, at least makes it clear that there is no red-line rule. It examined the case of an employer firing an employee for cause using videosurveillance evidence, when the use of the videosurveillance system for the purpose of checking the employee’s activity was illegal. It said that</p>
<blockquote>
<p>L'illicéité d'un moyen de preuve (...) n'entraîne pas nécessairement son rejet des débats, le juge devant apprécier si l'utilisation de cette preuve a porté atteinte au caractère équitable de la procédure dans son ensemble, en mettant en balance le droit au respect de la vie personnelle du salarié et le droit à la preuve, lequel peut justifier la production d'éléments portant atteinte à la vie personnelle d'un salarié à la condition que cette production soit indispensable à l'exercice de ce droit et que l'atteinte soit strictement proportionnée au but poursuivi.</p>
</blockquote>
<blockquote>
<p>That a given piece of evidence was illegally obtained (...) does not necessarily exclude it from trial. The judge should evaluate whether the use of that piece of evidence attacked the fairness of the whole procedure, balancing the employee's right to privacy with the right to obtain proof. The latter can justify producing pieces of evidence that violates an employee's privacy, under the condition that this production is absolutely necessary [for the purpose of proof] and that the violation is strictly proportional to the aim.</p>
</blockquote>
<p><em>NB: In that exact case, the Cour de Cassation found that the lower court did not evaluate the abovementioned balance (the lower court incorrectly asserted that the videosurveillance was legal and therefore did not consider excluding the evidence). The employee &quot;won&quot; inasmuch as the case was remanded rather than affirmed, but there is a decent chance that the lower court will find for the employer anyway after doing the balancing act.</em></p>
