Criminal Defense Wiki - User contributions [en]

Exclusionary Rule

2010-11-23T11:17:56Z

Jbraun: /* Exceptions to the Exclusionary Rule */

=Background=

One of the cornerstones of US constitutional protections is the exclusionary rule. The exclusionary rule states that evidence obtained as a result of an illegal search or seizure or illegal interrogation is not admissible against the victim in a criminal proceeding. There are several rationales behind the rule, including: 1) deterrence of law enforcement officials from engaging in prohibited conduct given that valuable evidence will be lost if such conduct ensues; and 2) preservation of judicial integrity through preventing taint of the court by unlawful police conduct.

The exclusionary rule was applied to United States federal courts in ''Weeks. v. United States'', 232 U.S. 383 (1914). The principal was later incorporated against the states in ''Mapp v. Ohio'', 367 U.S. 643 (1961). The rule excludes evidence regardless of whether the violation is conducted by a state or federal official, and regardless of whether the criminal prosecution is brought in a state or federal court. On the other hand, the exclusionary rule generally does not apply beyond the criminal trial itself. The court will weigh the cost of excluding the illegally obtained evidence against the deterrent benefit of extending the rule to the new situation.<ref>''United States v. Calandra'', 414 U.S. 338 (1974).</ref> For example, evidence seized unconstitutionally may be admissible in proceedings both before and after trial. Such proceedings include grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings and parole hearings.

Example: Baltimore Police break into defendant’s home without a warrant or applicable exception to the warrant requirement, finding a small amount of marijuana in the defendant's sock drawer. The evidence will be inadmissible because the evidence was found pursuant to an illegal search in violation of the defendant's Fourth Amendment Rights.

==Fruit of the Poisonous Tree==

Under the fruit of the poisonous tree doctrine, any additional evidence obtained as a result of illegally obtained evidence must also be excluded from trial.

In ''Wong Sun v. United States'', 371 U.S. 471 (1963) the U.S. Supreme Court refused to hold that “all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." The question, said the Court, is "whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In other words, courts must determine whether the evidence in question was obtained through exploitation of the illegally obtained evidence or through means sufficiently separate from the tainted evidence. Later, courts recharacterized the test as "attenuation" rather than "taint".

Example: The defendant was suspected of murdering a child. The defendant’s attorney advised the defendant to turn himself in, but to speak with police only when the attorney was present. The attorney also conveyed to the police that the defendant was not to speak with the police outside of his presence. While being transported by police officers, and without his attorney, the officers appealed to the defendant’s deep religious convictions. Thus, the defendant confessed and led the officers to the victim’s body. The confession was held inadmissible because the defendant’s rights were violated when the police persuaded him to lead them to the body. Evidence of the body was held admissible because its discovery was inevitable due to close proximity of search parties to the body. <ref>''Nix v. Williams'', 467 U.S. 431 (1984).</ref>

==Illegal Interrogations and Illegal Searches and Seizures==

Generally, the exclusionary rule applies in two different circumstances:

First, the exclusionary rule may apply to confessions when counsel proves the circumstances surrounding the interrogation were such that either the defendant's rights were violated or the interrogation was so coercive that the evidence is no longer reliable.

Second, the exclusionary rule may apply to evidence obtained by an illegal search or stop even though the evidence would otherwise be completely reliable. The rationale behind this second rule is twofold: 1) the government should not benefit from violating a country's laws, and 2) the hope that the exclusionary rule will deter future rights violations.

While many countries have some version of the exclusionary rule, the United States is unique because it is the only country in which the rule is mandatory for both illegal interrogations and illegal searches and seizures.

=International Standards Governing Exclusion of Illegal Evidence=

==China==
Prior to 2010 Chinese criminal procedure was silent on the issue of whether illegally obtained evidence was admissible against the defendant. However in June of 2010 the Supreme Court of China issued [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]], a set of comprehensive rules governing the use of illegal evidence in criminal cases.

===Rules for Illegal Interrogations===
On June 25, 2010, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice formally published [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]].

Under these rules, oral evidence obtained through illegal means such as coerced confessions and witness or victim testimony obtained through the use of violence or threats must be excluded.<Ref> Rule 1, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref>Furthermore, the people's procurator may not use the evidence as the basis for approving arrest or initiating prosecution.<Ref> Rule 2, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref> The rule is silent as to whether the fruits of an illegal confession can be used against the defendant if the oral evidence is excluded from trial. Nor do the rules indicate whether the evidence can be used to impeach the defendant.

===Rules for Illegal Searches and Seizures===

The rules do not indicate that evidence procured from an illegal search or seizure would be deemed inadmissible.

==France==

The closest concept to the exclusionary rule in French criminal procedure is the concept of [[Nullity of Procedure | nullities]].

===Nullity of Procedures===

'''Textual Nullity''' - Textual nullity applies when a rule explicitly provides for the exclusion of evidence if the procedure is violated. Because textual nullity rules are mandatory, the court must also prohibit the use of all fruits of the illegal procedure.

'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant generally must show actual harm or [[Standing | standing]], however, this need not be proven if the procedural error harmed public order.

===Involuntary Confessions===

Even if all formal criminal procedures are done correctly, a confession may still be inadmissible if it is extracted using [[Representing Victims of Torture | torture]] or deceptive investigatory techniques.

==South Africa==

In 1994, the enactment of South Africa’s Interim Constitution created an equivalent to the U.S. Bill of Rights. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as [[Right to Silence | Miranda warnings]]. Prior to the Interim Constitution, the general rule was that all relevant evidence was admissible. Evidence was only excluded if the defendant proved a deliberate violation of his or her rights.

Section 35(5) of the Constitution forms the basis for the exclusionary rule in South Africa:

<blockquote>Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.</blockquote>

===Rules for Illegal Interrogations===

As in most jurisdictions, involuntary statements are inadmissible in South African courts. In addition, South Africa has adopted progressive Miranda-style warnings that are required prior to the interrogation of individuals. Thus, failure to deliver the warnings may also result in the inadmissibility of evidence.

===Rules for Illegal Searches and Seizures===

Searches and seizures of evidence are covered under Section 35(5) of the Constitution of South Africa. Under this rule exclusion is mandatory if the court finds that one of two conditions is met:
#'''The evidence would render the trial unfair'''
#'''Admitting the evidence would prove detrimental to the administration of justice'''

In certain respects, this provision is broader than the U.S. equivalent. For one, the [[Standing to Suppress Evidence| standing]] requirement that limits the exclusionary rule in the United States does not apply in South Africa.

==United States==

===Exceptions to the Exclusionary Rule===

The United States Supreme Court has slowly eroded several cornerstones of the exclusionary rule. Many academics now consider the rule to be in danger. The following exceptions to the rule generally apply:

*'''Independent Source Doctrine''': Evidence is admissible if the government obtains evidence from a source independent of the illegal search or seizure.<ref>''United States v. Crews'', 445 U.S. 463 (1980)</ref>

*'''Inevitable Discovery Doctrine''': A variant of the "independent source" exception, stating a court may hold that the exclusionary rule does not apply if discovery of the evidence was certain regardless of the error. Generally, the mere notion that the evidence may have been discovered is not sufficient to trigger the exception. Thus, if the government can prove that discovery was inevitable, regardless of the illegal conduct, it may be admitted under the inevitable discovery doctrine.<ref> Nix v. Williams, 467 U.S. 431 (1984).</ref>

*'''Confessions''': Confessions resulting from an illegal seizure (defendant compelled to confess outside the presence of an attorney, after requesting an attorney) will be excluded from evidence. Nonetheless, confessions resulting from an illegal search or seizure are admissible if the link between the illegal conduct by the police and the challenged evidence is weak. For example, the police have probable cause to arrest an individual; they arrest the individual at home, without a warrant, and he thus confesses to the crime. This evidence would likely not be suppressed, particularly if the defendant were told of his right to remain silent and his right to counsel. The rationale behind this rule is that the exclusionary rule is meant to deter police misconduct. If the link between the misconduct and the evidence is weak, then there is little use of applying the exclusionary rule.

*'''Good Faith''': In ''United States v. Leon'' the U.S. Supreme Court concluded that the exclusionary rule does not apply to officers acting with an objectively reasonable belief that their conduct was not violating the defendant’s rights. For the exception to apply, good faith generally requires the existence of a search warrant issued by a neutral magistrate based on probable cause. The exception applies even if the appeals court determines sufficient probable cause did not exist to issue a warrant. There are four exceptions to this rule:
# Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it.
# Warrant is defective on its face (fails to state with particularity the place to be searched or the things to be seized).
# Police officer or government official obtaining the warrant lied to or misled the magistrate.
# Magistrate has wholly abandoned his role.

* '''Standing''': In ''Rakas v. Illinois'' the U.S. Supreme Court held that a person who is aggrieved by an illegal search or seizure, which occurred only through evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed. Therefore, the defendant cannot use the exclusionary rule to prevent the evidence from being admitted at trial.

* '''Civil Suits''': Generally, the exclusionary rule only applies in criminal proceedings. Thus, the evidence may be admissible in a civil suit against the defendant for damages.

* '''Knock and Announce''': In ''Hudson v. Michigan'' (2006), the U.S. Supreme Court concluded that a violation of the knock and announce rule does not require the exclusion of any evidence obtained pursuant to the search. The court concluded that the causal connection was remote and suppression would not serve the interest protected by the constitutional guarantee. After this case was decided, many academics warned that the Supreme Court would soon overrule the exclusionary rule, or replace it with a social costs balancing test.

* '''Evidence from Outside the Country''': In ''United States v. Alvarez-Machain'', the U.S. Supreme Court held that an extradition treaty with Mexico does not bar jurisdiction of US court where defendant was forcibly extracted from Mexico. Treaty has no explicit prohibition and does not state that extradition is exclusive method of extraction.

==Germany==

Section 244 of the German Code of Criminal Procedure vests authority in the court to limit the admissibility of evidence. Section 244(3) states “[a]n application to take evidence shall be rejected if the taking of evidence is inadmissible.” Thus, the criminal court is required to reject an application if the evidence was illegally obtained. Section 136a of the Code of Criminal Procedure stipulates that in the preliminary inquiry the accused’s freedom to make up his or her mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, etc… Statements obtained in breach of this prohibition shall not be admitted into evidence, even if the accused agrees to their use. Evidence collected by creating an interference with fundamental rights will be admissible depending on whether the interference has some base in a special law rescuing it from inadmissibility.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

The Federal Constitutional Court of Germany requires determination of evidence admissibility through a balancing test that considers respect for human dignity in light of the severity of the crime being investigated. In particular, the Court ruled that there is a presumption in favor of the accused in certain circumstances that require a strict evaluation in favor of the accused. Such circumstances include searches and seizures within the accused’s home or conversations between the accused and a person “within his or her inner private sphere.” Nonetheless, the Court elaborates, “where no connection between a specific conversation and an individual’s inner private sphere exists, such conversations will not affect the human dignity aspect of the fundamental right.”<ref>Federal Constitutional Court, Germany, 1 BvR 2378/98 (2004).</ref>

=Spain=

Similar to Germany, Spain incorporates the exclusionary rule into criminal justice procedure through weighing the importance of preserving a fundamental right, such as right to privacy or right to a fair trial, and the reason for sacrificing such right.<ref>Spain Constitutional Court, First Chamber 26-03-1996 54/1996.</ref>

Further, Spain protects fundamental rights by evaluating the admissibility of evidence in a criminal trial through the prism of the “principle of proportionality.” Thus law enforcement agencies prior to collecting the evidence in question must prove 1) they are capable of producing the desired outcome; 2) the least intrusive alternative capable of delivering that outcome is being utilized; and 3) the intrusion must be proportionate to the benefit derived from the measure. Therefore, the principle requires a judge to consider not only the seriousness of the offense, but to also strictly adhere to the guarantees provide by a specific and reasoned judicial authorization.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

=European Court of Human Rights=

The European Court of Human Rights adopted the position that the use of illegally obtained evidence does not necessarily lead to unfair proceedings.<ref>Eur. Ct. HR, ''Schenk v. Switzerland'' Judgement of 12 July 1988, Series A no. 140, and Eur. Ct. HR (3d sect.), Khan v. the United Kingdom (Appl. No 35394/97), ECHR 2000-V, judgement of 12 May 2000.</ref> The position of the Court is that it should generally be left to national courts to decide on the admissibility of evidence. Nonetheless, the Court ruled, “The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.”<ref>P.G. and J.H. v. the United Kingdom, judgment of 25 September 2001.</ref> The court went on to explain that determining admissibility involves an examination of the alleged unlawfulness in question and the nature of the violation. Thus the fairness of a trial is not necessarily corroded by the use of illegally obtained evidence.

In general, national rules of criminal procedure are more protective of the accused than the European Convention on Human Rights. Only seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) admit evidence obtained in violation of the right to respect for private life. In most other member States, such evidence would not normally be admissible.

----
See [[Rights of the Accused]], [[Evidence]], [[Defenses]]
==Notes==
<references/>

Exclusionary Rule

2010-11-23T11:17:21Z

Jbraun: /* Exceptions to the Exclusionary Rule */

=Background=

One of the cornerstones of US constitutional protections is the exclusionary rule. The exclusionary rule states that evidence obtained as a result of an illegal search or seizure or illegal interrogation is not admissible against the victim in a criminal proceeding. There are several rationales behind the rule, including: 1) deterrence of law enforcement officials from engaging in prohibited conduct given that valuable evidence will be lost if such conduct ensues; and 2) preservation of judicial integrity through preventing taint of the court by unlawful police conduct.

The exclusionary rule was applied to United States federal courts in ''Weeks. v. United States'', 232 U.S. 383 (1914). The principal was later incorporated against the states in ''Mapp v. Ohio'', 367 U.S. 643 (1961). The rule excludes evidence regardless of whether the violation is conducted by a state or federal official, and regardless of whether the criminal prosecution is brought in a state or federal court. On the other hand, the exclusionary rule generally does not apply beyond the criminal trial itself. The court will weigh the cost of excluding the illegally obtained evidence against the deterrent benefit of extending the rule to the new situation.<ref>''United States v. Calandra'', 414 U.S. 338 (1974).</ref> For example, evidence seized unconstitutionally may be admissible in proceedings both before and after trial. Such proceedings include grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings and parole hearings.

Example: Baltimore Police break into defendant’s home without a warrant or applicable exception to the warrant requirement, finding a small amount of marijuana in the defendant's sock drawer. The evidence will be inadmissible because the evidence was found pursuant to an illegal search in violation of the defendant's Fourth Amendment Rights.

==Fruit of the Poisonous Tree==

Under the fruit of the poisonous tree doctrine, any additional evidence obtained as a result of illegally obtained evidence must also be excluded from trial.

In ''Wong Sun v. United States'', 371 U.S. 471 (1963) the U.S. Supreme Court refused to hold that “all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." The question, said the Court, is "whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In other words, courts must determine whether the evidence in question was obtained through exploitation of the illegally obtained evidence or through means sufficiently separate from the tainted evidence. Later, courts recharacterized the test as "attenuation" rather than "taint".

Example: The defendant was suspected of murdering a child. The defendant’s attorney advised the defendant to turn himself in, but to speak with police only when the attorney was present. The attorney also conveyed to the police that the defendant was not to speak with the police outside of his presence. While being transported by police officers, and without his attorney, the officers appealed to the defendant’s deep religious convictions. Thus, the defendant confessed and led the officers to the victim’s body. The confession was held inadmissible because the defendant’s rights were violated when the police persuaded him to lead them to the body. Evidence of the body was held admissible because its discovery was inevitable due to close proximity of search parties to the body. <ref>''Nix v. Williams'', 467 U.S. 431 (1984).</ref>

==Illegal Interrogations and Illegal Searches and Seizures==

Generally, the exclusionary rule applies in two different circumstances:

First, the exclusionary rule may apply to confessions when counsel proves the circumstances surrounding the interrogation were such that either the defendant's rights were violated or the interrogation was so coercive that the evidence is no longer reliable.

Second, the exclusionary rule may apply to evidence obtained by an illegal search or stop even though the evidence would otherwise be completely reliable. The rationale behind this second rule is twofold: 1) the government should not benefit from violating a country's laws, and 2) the hope that the exclusionary rule will deter future rights violations.

While many countries have some version of the exclusionary rule, the United States is unique because it is the only country in which the rule is mandatory for both illegal interrogations and illegal searches and seizures.

=International Standards Governing Exclusion of Illegal Evidence=

==China==
Prior to 2010 Chinese criminal procedure was silent on the issue of whether illegally obtained evidence was admissible against the defendant. However in June of 2010 the Supreme Court of China issued [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]], a set of comprehensive rules governing the use of illegal evidence in criminal cases.

===Rules for Illegal Interrogations===
On June 25, 2010, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice formally published [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]].

Under these rules, oral evidence obtained through illegal means such as coerced confessions and witness or victim testimony obtained through the use of violence or threats must be excluded.<Ref> Rule 1, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref>Furthermore, the people's procurator may not use the evidence as the basis for approving arrest or initiating prosecution.<Ref> Rule 2, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref> The rule is silent as to whether the fruits of an illegal confession can be used against the defendant if the oral evidence is excluded from trial. Nor do the rules indicate whether the evidence can be used to impeach the defendant.

===Rules for Illegal Searches and Seizures===

The rules do not indicate that evidence procured from an illegal search or seizure would be deemed inadmissible.

==France==

The closest concept to the exclusionary rule in French criminal procedure is the concept of [[Nullity of Procedure | nullities]].

===Nullity of Procedures===

'''Textual Nullity''' - Textual nullity applies when a rule explicitly provides for the exclusion of evidence if the procedure is violated. Because textual nullity rules are mandatory, the court must also prohibit the use of all fruits of the illegal procedure.

'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant generally must show actual harm or [[Standing | standing]], however, this need not be proven if the procedural error harmed public order.

===Involuntary Confessions===

Even if all formal criminal procedures are done correctly, a confession may still be inadmissible if it is extracted using [[Representing Victims of Torture | torture]] or deceptive investigatory techniques.

==South Africa==

In 1994, the enactment of South Africa’s Interim Constitution created an equivalent to the U.S. Bill of Rights. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as [[Right to Silence | Miranda warnings]]. Prior to the Interim Constitution, the general rule was that all relevant evidence was admissible. Evidence was only excluded if the defendant proved a deliberate violation of his or her rights.

Section 35(5) of the Constitution forms the basis for the exclusionary rule in South Africa:

<blockquote>Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.</blockquote>

===Rules for Illegal Interrogations===

As in most jurisdictions, involuntary statements are inadmissible in South African courts. In addition, South Africa has adopted progressive Miranda-style warnings that are required prior to the interrogation of individuals. Thus, failure to deliver the warnings may also result in the inadmissibility of evidence.

===Rules for Illegal Searches and Seizures===

Searches and seizures of evidence are covered under Section 35(5) of the Constitution of South Africa. Under this rule exclusion is mandatory if the court finds that one of two conditions is met:
#'''The evidence would render the trial unfair'''
#'''Admitting the evidence would prove detrimental to the administration of justice'''

In certain respects, this provision is broader than the U.S. equivalent. For one, the [[Standing to Suppress Evidence| standing]] requirement that limits the exclusionary rule in the United States does not apply in South Africa.

==United States==

===Exceptions to the Exclusionary Rule===

The United States Supreme Court has slowly eroded several cornerstones of the exclusionary rule. Many academics now consider the rule to be in danger. The following exceptions to the rule generally apply:

*'''Independent Source Doctrine''': Evidence is admissible if the government obtains evidence from a source independent of the illegal search or seizure.<ref>''United States v. Crews'', 445 U.S. 463 (1980)</ref>

*'''Inevitable Discovery Doctrine''': A variant of the "independent source" exception, stating a court may hold that the exclusionary rule does not apply if discovery of the evidence was certain regardless of the error. Generally, the mere notion that the evidence may have been discovered is not sufficient to trigger the exception. Thus, if the government can prove that discovery was inevitable, regardless of the illegal conduct, it may be admitted under the inevitable discovery doctrine.<ref> Nix v. Williams, 467 U.S. 431 (1984).</ref>

*'''Confessions''': Confessions resulting from an illegal seizure (defendant compelled to confess outside the presence of an attorney, after requesting an attorney) will be excluded from evidence. Nonetheless, confessions resulting from an illegal search or seizure are admissible if the link between the illegal conduct by the police and the challenged evidence is weak. For example, the police have probable cause to arrest an individual; they arrest the individual at home, without a warrant, and he thus confesses to the crime. This evidence would likely not be suppressed, particularly if the defendant were told of his right to remain silent and his right to counsel.

The rationale behind this rule is that the exclusionary rule is meant to deter police misconduct. If the link between the misconduct and the evidence is weak, then there is little use of applying the exclusionary rule.

*'''Good Faith''': In ''United States v. Leon'' the U.S. Supreme Court concluded that the exclusionary rule does not apply to officers acting with an objectively reasonable belief that their conduct was not violating the defendant’s rights. For the exception to apply, good faith generally requires the existence of a search warrant issued by a neutral magistrate based on probable cause. The exception applies even if the appeals court determines sufficient probable cause did not exist to issue a warrant. There are four exceptions to this rule:
# Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it.
# Warrant is defective on its face (fails to state with particularity the place to be searched or the things to be seized).
# Police officer or government official obtaining the warrant lied to or misled the magistrate.
# Magistrate has wholly abandoned his role.

* '''Standing''': In ''Rakas v. Illinois'' the U.S. Supreme Court held that a person who is aggrieved by an illegal search or seizure, which occurred only through evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed. Therefore, the defendant cannot use the exclusionary rule to prevent the evidence from being admitted at trial.

* '''Civil Suits''': Generally, the exclusionary rule only applies in criminal proceedings. Thus, the evidence may be admissible in a civil suit against the defendant for damages.

* '''Knock and Announce''': In ''Hudson v. Michigan'' (2006), the U.S. Supreme Court concluded that a violation of the knock and announce rule does not require the exclusion of any evidence obtained pursuant to the search. The court concluded that the causal connection was remote and suppression would not serve the interest protected by the constitutional guarantee. After this case was decided, many academics warned that the Supreme Court would soon overrule the exclusionary rule, or replace it with a social costs balancing test.

* '''Evidence from Outside the Country''': In ''United States v. Alvarez-Machain'', the U.S. Supreme Court held that an extradition treaty with Mexico does not bar jurisdiction of US court where defendant was forcibly extracted from Mexico. Treaty has no explicit prohibition and does not state that extradition is exclusive method of extraction.

==Germany==

Section 244 of the German Code of Criminal Procedure vests authority in the court to limit the admissibility of evidence. Section 244(3) states “[a]n application to take evidence shall be rejected if the taking of evidence is inadmissible.” Thus, the criminal court is required to reject an application if the evidence was illegally obtained. Section 136a of the Code of Criminal Procedure stipulates that in the preliminary inquiry the accused’s freedom to make up his or her mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, etc… Statements obtained in breach of this prohibition shall not be admitted into evidence, even if the accused agrees to their use. Evidence collected by creating an interference with fundamental rights will be admissible depending on whether the interference has some base in a special law rescuing it from inadmissibility.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

The Federal Constitutional Court of Germany requires determination of evidence admissibility through a balancing test that considers respect for human dignity in light of the severity of the crime being investigated. In particular, the Court ruled that there is a presumption in favor of the accused in certain circumstances that require a strict evaluation in favor of the accused. Such circumstances include searches and seizures within the accused’s home or conversations between the accused and a person “within his or her inner private sphere.” Nonetheless, the Court elaborates, “where no connection between a specific conversation and an individual’s inner private sphere exists, such conversations will not affect the human dignity aspect of the fundamental right.”<ref>Federal Constitutional Court, Germany, 1 BvR 2378/98 (2004).</ref>

=Spain=

Similar to Germany, Spain incorporates the exclusionary rule into criminal justice procedure through weighing the importance of preserving a fundamental right, such as right to privacy or right to a fair trial, and the reason for sacrificing such right.<ref>Spain Constitutional Court, First Chamber 26-03-1996 54/1996.</ref>

Further, Spain protects fundamental rights by evaluating the admissibility of evidence in a criminal trial through the prism of the “principle of proportionality.” Thus law enforcement agencies prior to collecting the evidence in question must prove 1) they are capable of producing the desired outcome; 2) the least intrusive alternative capable of delivering that outcome is being utilized; and 3) the intrusion must be proportionate to the benefit derived from the measure. Therefore, the principle requires a judge to consider not only the seriousness of the offense, but to also strictly adhere to the guarantees provide by a specific and reasoned judicial authorization.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

=European Court of Human Rights=

The European Court of Human Rights adopted the position that the use of illegally obtained evidence does not necessarily lead to unfair proceedings.<ref>Eur. Ct. HR, ''Schenk v. Switzerland'' Judgement of 12 July 1988, Series A no. 140, and Eur. Ct. HR (3d sect.), Khan v. the United Kingdom (Appl. No 35394/97), ECHR 2000-V, judgement of 12 May 2000.</ref> The position of the Court is that it should generally be left to national courts to decide on the admissibility of evidence. Nonetheless, the Court ruled, “The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.”<ref>P.G. and J.H. v. the United Kingdom, judgment of 25 September 2001.</ref> The court went on to explain that determining admissibility involves an examination of the alleged unlawfulness in question and the nature of the violation. Thus the fairness of a trial is not necessarily corroded by the use of illegally obtained evidence.

In general, national rules of criminal procedure are more protective of the accused than the European Convention on Human Rights. Only seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) admit evidence obtained in violation of the right to respect for private life. In most other member States, such evidence would not normally be admissible.

----
See [[Rights of the Accused]], [[Evidence]], [[Defenses]]
==Notes==
<references/>

Exclusionary Rule

2010-11-23T11:15:24Z

Jbraun: /* Exceptions to the Exclusionary Rule */

=Background=

One of the cornerstones of US constitutional protections is the exclusionary rule. The exclusionary rule states that evidence obtained as a result of an illegal search or seizure or illegal interrogation is not admissible against the victim in a criminal proceeding. There are several rationales behind the rule, including: 1) deterrence of law enforcement officials from engaging in prohibited conduct given that valuable evidence will be lost if such conduct ensues; and 2) preservation of judicial integrity through preventing taint of the court by unlawful police conduct.

The exclusionary rule was applied to United States federal courts in ''Weeks. v. United States'', 232 U.S. 383 (1914). The principal was later incorporated against the states in ''Mapp v. Ohio'', 367 U.S. 643 (1961). The rule excludes evidence regardless of whether the violation is conducted by a state or federal official, and regardless of whether the criminal prosecution is brought in a state or federal court. On the other hand, the exclusionary rule generally does not apply beyond the criminal trial itself. The court will weigh the cost of excluding the illegally obtained evidence against the deterrent benefit of extending the rule to the new situation.<ref>''United States v. Calandra'', 414 U.S. 338 (1974).</ref> For example, evidence seized unconstitutionally may be admissible in proceedings both before and after trial. Such proceedings include grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings and parole hearings.

Example: Baltimore Police break into defendant’s home without a warrant or applicable exception to the warrant requirement, finding a small amount of marijuana in the defendant's sock drawer. The evidence will be inadmissible because the evidence was found pursuant to an illegal search in violation of the defendant's Fourth Amendment Rights.

==Fruit of the Poisonous Tree==

Under the fruit of the poisonous tree doctrine, any additional evidence obtained as a result of illegally obtained evidence must also be excluded from trial.

In ''Wong Sun v. United States'', 371 U.S. 471 (1963) the U.S. Supreme Court refused to hold that “all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." The question, said the Court, is "whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In other words, courts must determine whether the evidence in question was obtained through exploitation of the illegally obtained evidence or through means sufficiently separate from the tainted evidence. Later, courts recharacterized the test as "attenuation" rather than "taint".

Example: The defendant was suspected of murdering a child. The defendant’s attorney advised the defendant to turn himself in, but to speak with police only when the attorney was present. The attorney also conveyed to the police that the defendant was not to speak with the police outside of his presence. While being transported by police officers, and without his attorney, the officers appealed to the defendant’s deep religious convictions. Thus, the defendant confessed and led the officers to the victim’s body. The confession was held inadmissible because the defendant’s rights were violated when the police persuaded him to lead them to the body. Evidence of the body was held admissible because its discovery was inevitable due to close proximity of search parties to the body. <ref>''Nix v. Williams'', 467 U.S. 431 (1984).</ref>

==Illegal Interrogations and Illegal Searches and Seizures==

Generally, the exclusionary rule applies in two different circumstances:

First, the exclusionary rule may apply to confessions when counsel proves the circumstances surrounding the interrogation were such that either the defendant's rights were violated or the interrogation was so coercive that the evidence is no longer reliable.

Second, the exclusionary rule may apply to evidence obtained by an illegal search or stop even though the evidence would otherwise be completely reliable. The rationale behind this second rule is twofold: 1) the government should not benefit from violating a country's laws, and 2) the hope that the exclusionary rule will deter future rights violations.

While many countries have some version of the exclusionary rule, the United States is unique because it is the only country in which the rule is mandatory for both illegal interrogations and illegal searches and seizures.

=International Standards Governing Exclusion of Illegal Evidence=

==China==
Prior to 2010 Chinese criminal procedure was silent on the issue of whether illegally obtained evidence was admissible against the defendant. However in June of 2010 the Supreme Court of China issued [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]], a set of comprehensive rules governing the use of illegal evidence in criminal cases.

===Rules for Illegal Interrogations===
On June 25, 2010, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice formally published [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]].

Under these rules, oral evidence obtained through illegal means such as coerced confessions and witness or victim testimony obtained through the use of violence or threats must be excluded.<Ref> Rule 1, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref>Furthermore, the people's procurator may not use the evidence as the basis for approving arrest or initiating prosecution.<Ref> Rule 2, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref> The rule is silent as to whether the fruits of an illegal confession can be used against the defendant if the oral evidence is excluded from trial. Nor do the rules indicate whether the evidence can be used to impeach the defendant.

===Rules for Illegal Searches and Seizures===

The rules do not indicate that evidence procured from an illegal search or seizure would be deemed inadmissible.

==France==

The closest concept to the exclusionary rule in French criminal procedure is the concept of [[Nullity of Procedure | nullities]].

===Nullity of Procedures===

'''Textual Nullity''' - Textual nullity applies when a rule explicitly provides for the exclusion of evidence if the procedure is violated. Because textual nullity rules are mandatory, the court must also prohibit the use of all fruits of the illegal procedure.

'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant generally must show actual harm or [[Standing | standing]], however, this need not be proven if the procedural error harmed public order.

===Involuntary Confessions===

Even if all formal criminal procedures are done correctly, a confession may still be inadmissible if it is extracted using [[Representing Victims of Torture | torture]] or deceptive investigatory techniques.

==South Africa==

In 1994, the enactment of South Africa’s Interim Constitution created an equivalent to the U.S. Bill of Rights. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as [[Right to Silence | Miranda warnings]]. Prior to the Interim Constitution, the general rule was that all relevant evidence was admissible. Evidence was only excluded if the defendant proved a deliberate violation of his or her rights.

Section 35(5) of the Constitution forms the basis for the exclusionary rule in South Africa:

<blockquote>Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.</blockquote>

===Rules for Illegal Interrogations===

As in most jurisdictions, involuntary statements are inadmissible in South African courts. In addition, South Africa has adopted progressive Miranda-style warnings that are required prior to the interrogation of individuals. Thus, failure to deliver the warnings may also result in the inadmissibility of evidence.

===Rules for Illegal Searches and Seizures===

Searches and seizures of evidence are covered under Section 35(5) of the Constitution of South Africa. Under this rule exclusion is mandatory if the court finds that one of two conditions is met:
#'''The evidence would render the trial unfair'''
#'''Admitting the evidence would prove detrimental to the administration of justice'''

In certain respects, this provision is broader than the U.S. equivalent. For one, the [[Standing to Suppress Evidence| standing]] requirement that limits the exclusionary rule in the United States does not apply in South Africa.

==United States==

===Exceptions to the Exclusionary Rule===

The United States Supreme Court has slowly eroded several cornerstones of the exclusionary rule. Many academics now consider the rule to be in danger. The following exceptions to the rule generally apply:

*'''Independent Source Doctrine''': Evidence is admissible if the government obtains evidence from a source independent of the illegal search or seizure.<ref>''United States v. Crews'', 445 U.S. 463 (1980)</ref>

*'''Inevitable Discovery Doctrine''': A variant of the "independent source" exception, stating a court may hold that the exclusionary rule does not apply if discovery of the evidence was certain regardless of the error. Generally, the mere notion that the evidence may have been discovered is not sufficient to trigger the exception. Thus, if the government can prove that discovery was inevitable, regardless of the illegal conduct, it may be admitted under the inevitable discovery doctrine.<ref> Nix v. Williams, 467 U.S. 431 (1984).</ref>

* ‘’’Confessions’’’: Confessions resulting from an illegal seizure (defendant compelled to confess outside the presence of an attorney, after requesting an attorney) will be excluded from evidence. Nonetheless, confessions resulting from an illegal search or seizure are admissible if the link between the illegal conduct by the police and the challenged evidence is weak. For example, the police have probable cause to arrest an individual; they arrest the individual at home, without a warrant, and he thus confesses to the crime. This evidence would likely not be suppressed, particularly if the defendant were told of his right to remain silent and his right to counsel.

The rationale behind this rule is that the exclusionary rule is meant to deter police misconduct. If the link between the misconduct and the evidence is weak, then there is little use of applying the exclusionary rule.

* '''Good Faith''' - In ''United States v. Leon'' the U.S. Supreme Court concluded that the exclusionary rule does not apply to officers acting with an objectively reasonable belief that their conduct was not violating the defendant’s rights. For the exception to apply, good faith generally requires the existence of a search warrant issued by a neutral magistrate based on probable cause. The exception applies even if the appeals court determines sufficient probable cause did not exist to issue a warrant. There are four exceptions to this rule:
# Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it.
# Warrant is defective on its face (fails to state with particularity the place to be searched or the things to be seized).
# Police officer or government official obtaining the warrant lied to or misled the magistrate.
# Magistrate has wholly abandoned his role.

* '''Standing''' - In ''Rakas v. Illinois'' the U.S. Supreme Court held that a person who is aggrieved by an illegal search or seizure, which occurred only through evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed. Therefore, the defendant cannot use the exclusionary rule to prevent the evidence from being admitted at trial.

* '''Civil Suits''' - Generally, the exclusionary rule only applies in criminal proceedings. Thus, the evidence may be admissible in a civil suit against the defendant for damages.

* '''Knock and Announce''' - In ''Hudson v. Michigan'' (2006), the U.S. Supreme Court concluded that a violation of the knock and announce rule does not require the exclusion of any evidence obtained pursuant to the search. The court concluded that the causal connection was remote and suppression would not serve the interest protected by the constitutional guarantee. After this case was decided, many academics warned that the Supreme Court would soon overrule the exclusionary rule, or replace it with a social costs balancing test.

* '''Evidence from Outside the Country''' - In'' United States v. Alvarez-Machain'', the U.S. Supreme Court held that an extradition treaty with Mexico does not bar jurisdiction of US court where defendant was forcibly extracted from Mexico. Treaty has no explicit prohibition and does not state that extradition is exclusive method of extraction.

==Germany==

Section 244 of the German Code of Criminal Procedure vests authority in the court to limit the admissibility of evidence. Section 244(3) states “[a]n application to take evidence shall be rejected if the taking of evidence is inadmissible.” Thus, the criminal court is required to reject an application if the evidence was illegally obtained. Section 136a of the Code of Criminal Procedure stipulates that in the preliminary inquiry the accused’s freedom to make up his or her mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, etc… Statements obtained in breach of this prohibition shall not be admitted into evidence, even if the accused agrees to their use. Evidence collected by creating an interference with fundamental rights will be admissible depending on whether the interference has some base in a special law rescuing it from inadmissibility.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

The Federal Constitutional Court of Germany requires determination of evidence admissibility through a balancing test that considers respect for human dignity in light of the severity of the crime being investigated. In particular, the Court ruled that there is a presumption in favor of the accused in certain circumstances that require a strict evaluation in favor of the accused. Such circumstances include searches and seizures within the accused’s home or conversations between the accused and a person “within his or her inner private sphere.” Nonetheless, the Court elaborates, “where no connection between a specific conversation and an individual’s inner private sphere exists, such conversations will not affect the human dignity aspect of the fundamental right.”<ref>Federal Constitutional Court, Germany, 1 BvR 2378/98 (2004).</ref>

=Spain=

Similar to Germany, Spain incorporates the exclusionary rule into criminal justice procedure through weighing the importance of preserving a fundamental right, such as right to privacy or right to a fair trial, and the reason for sacrificing such right.<ref>Spain Constitutional Court, First Chamber 26-03-1996 54/1996.</ref>

Further, Spain protects fundamental rights by evaluating the admissibility of evidence in a criminal trial through the prism of the “principle of proportionality.” Thus law enforcement agencies prior to collecting the evidence in question must prove 1) they are capable of producing the desired outcome; 2) the least intrusive alternative capable of delivering that outcome is being utilized; and 3) the intrusion must be proportionate to the benefit derived from the measure. Therefore, the principle requires a judge to consider not only the seriousness of the offense, but to also strictly adhere to the guarantees provide by a specific and reasoned judicial authorization.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

=European Court of Human Rights=

The European Court of Human Rights adopted the position that the use of illegally obtained evidence does not necessarily lead to unfair proceedings.<ref>Eur. Ct. HR, ''Schenk v. Switzerland'' Judgement of 12 July 1988, Series A no. 140, and Eur. Ct. HR (3d sect.), Khan v. the United Kingdom (Appl. No 35394/97), ECHR 2000-V, judgement of 12 May 2000.</ref> The position of the Court is that it should generally be left to national courts to decide on the admissibility of evidence. Nonetheless, the Court ruled, “The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.”<ref>P.G. and J.H. v. the United Kingdom, judgment of 25 September 2001.</ref> The court went on to explain that determining admissibility involves an examination of the alleged unlawfulness in question and the nature of the violation. Thus the fairness of a trial is not necessarily corroded by the use of illegally obtained evidence.

In general, national rules of criminal procedure are more protective of the accused than the European Convention on Human Rights. Only seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) admit evidence obtained in violation of the right to respect for private life. In most other member States, such evidence would not normally be admissible.

----
See [[Rights of the Accused]], [[Evidence]], [[Defenses]]
==Notes==
<references/>

Exclusionary Rule

2010-11-23T11:13:57Z

Jbraun:

=Background=

One of the cornerstones of US constitutional protections is the exclusionary rule. The exclusionary rule states that evidence obtained as a result of an illegal search or seizure or illegal interrogation is not admissible against the victim in a criminal proceeding. There are several rationales behind the rule, including: 1) deterrence of law enforcement officials from engaging in prohibited conduct given that valuable evidence will be lost if such conduct ensues; and 2) preservation of judicial integrity through preventing taint of the court by unlawful police conduct.

The exclusionary rule was applied to United States federal courts in ''Weeks. v. United States'', 232 U.S. 383 (1914). The principal was later incorporated against the states in ''Mapp v. Ohio'', 367 U.S. 643 (1961). The rule excludes evidence regardless of whether the violation is conducted by a state or federal official, and regardless of whether the criminal prosecution is brought in a state or federal court. On the other hand, the exclusionary rule generally does not apply beyond the criminal trial itself. The court will weigh the cost of excluding the illegally obtained evidence against the deterrent benefit of extending the rule to the new situation.<ref>''United States v. Calandra'', 414 U.S. 338 (1974).</ref> For example, evidence seized unconstitutionally may be admissible in proceedings both before and after trial. Such proceedings include grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings and parole hearings.

Example: Baltimore Police break into defendant’s home without a warrant or applicable exception to the warrant requirement, finding a small amount of marijuana in the defendant's sock drawer. The evidence will be inadmissible because the evidence was found pursuant to an illegal search in violation of the defendant's Fourth Amendment Rights.

==Fruit of the Poisonous Tree==

Under the fruit of the poisonous tree doctrine, any additional evidence obtained as a result of illegally obtained evidence must also be excluded from trial.

In ''Wong Sun v. United States'', 371 U.S. 471 (1963) the U.S. Supreme Court refused to hold that “all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police." The question, said the Court, is "whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In other words, courts must determine whether the evidence in question was obtained through exploitation of the illegally obtained evidence or through means sufficiently separate from the tainted evidence. Later, courts recharacterized the test as "attenuation" rather than "taint".

Example: The defendant was suspected of murdering a child. The defendant’s attorney advised the defendant to turn himself in, but to speak with police only when the attorney was present. The attorney also conveyed to the police that the defendant was not to speak with the police outside of his presence. While being transported by police officers, and without his attorney, the officers appealed to the defendant’s deep religious convictions. Thus, the defendant confessed and led the officers to the victim’s body. The confession was held inadmissible because the defendant’s rights were violated when the police persuaded him to lead them to the body. Evidence of the body was held admissible because its discovery was inevitable due to close proximity of search parties to the body. <ref>''Nix v. Williams'', 467 U.S. 431 (1984).</ref>

==Illegal Interrogations and Illegal Searches and Seizures==

Generally, the exclusionary rule applies in two different circumstances:

First, the exclusionary rule may apply to confessions when counsel proves the circumstances surrounding the interrogation were such that either the defendant's rights were violated or the interrogation was so coercive that the evidence is no longer reliable.

Second, the exclusionary rule may apply to evidence obtained by an illegal search or stop even though the evidence would otherwise be completely reliable. The rationale behind this second rule is twofold: 1) the government should not benefit from violating a country's laws, and 2) the hope that the exclusionary rule will deter future rights violations.

While many countries have some version of the exclusionary rule, the United States is unique because it is the only country in which the rule is mandatory for both illegal interrogations and illegal searches and seizures.

=International Standards Governing Exclusion of Illegal Evidence=

==China==
Prior to 2010 Chinese criminal procedure was silent on the issue of whether illegally obtained evidence was admissible against the defendant. However in June of 2010 the Supreme Court of China issued [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]], a set of comprehensive rules governing the use of illegal evidence in criminal cases.

===Rules for Illegal Interrogations===
On June 25, 2010, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice formally published [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]].

Under these rules, oral evidence obtained through illegal means such as coerced confessions and witness or victim testimony obtained through the use of violence or threats must be excluded.<Ref> Rule 1, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref>Furthermore, the people's procurator may not use the evidence as the basis for approving arrest or initiating prosecution.<Ref> Rule 2, Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases, China's Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 25, 2010.</ref> The rule is silent as to whether the fruits of an illegal confession can be used against the defendant if the oral evidence is excluded from trial. Nor do the rules indicate whether the evidence can be used to impeach the defendant.

===Rules for Illegal Searches and Seizures===

The rules do not indicate that evidence procured from an illegal search or seizure would be deemed inadmissible.

==France==

The closest concept to the exclusionary rule in French criminal procedure is the concept of [[Nullity of Procedure | nullities]].

===Nullity of Procedures===

'''Textual Nullity''' - Textual nullity applies when a rule explicitly provides for the exclusion of evidence if the procedure is violated. Because textual nullity rules are mandatory, the court must also prohibit the use of all fruits of the illegal procedure.

'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant generally must show actual harm or [[Standing | standing]], however, this need not be proven if the procedural error harmed public order.

===Involuntary Confessions===

Even if all formal criminal procedures are done correctly, a confession may still be inadmissible if it is extracted using [[Representing Victims of Torture | torture]] or deceptive investigatory techniques.

==South Africa==

In 1994, the enactment of South Africa’s Interim Constitution created an equivalent to the U.S. Bill of Rights. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as [[Right to Silence | Miranda warnings]]. Prior to the Interim Constitution, the general rule was that all relevant evidence was admissible. Evidence was only excluded if the defendant proved a deliberate violation of his or her rights.

Section 35(5) of the Constitution forms the basis for the exclusionary rule in South Africa:

<blockquote>Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.</blockquote>

===Rules for Illegal Interrogations===

As in most jurisdictions, involuntary statements are inadmissible in South African courts. In addition, South Africa has adopted progressive Miranda-style warnings that are required prior to the interrogation of individuals. Thus, failure to deliver the warnings may also result in the inadmissibility of evidence.

===Rules for Illegal Searches and Seizures===

Searches and seizures of evidence are covered under Section 35(5) of the Constitution of South Africa. Under this rule exclusion is mandatory if the court finds that one of two conditions is met:
#'''The evidence would render the trial unfair'''
#'''Admitting the evidence would prove detrimental to the administration of justice'''

In certain respects, this provision is broader than the U.S. equivalent. For one, the [[Standing to Suppress Evidence| standing]] requirement that limits the exclusionary rule in the United States does not apply in South Africa.

==United States==

===Exceptions to the Exclusionary Rule===

The United States Supreme Court has slowly eroded several cornerstones of the exclusionary rule. Many academics now consider the rule to be in danger. The following exceptions to the rule generally apply:

*’’’Independent Source Doctrine’’’: Evidence is admissible if the government obtains evidence from a source independent of the illegal search or seizure.<ref>''United States v. Crews'', 445 U.S. 463 (1980)</ref>

‘’’Inevitable Discovery Doctrine’’’: A variant of the "independent source" exception, stating a court may hold that the exclusionary rule does not apply if discovery of the evidence was certain regardless of the error. Generally, the mere notion that the evidence may have been discovered is not sufficient to trigger the exception. Thus, if the government can prove that discovery was inevitable, regardless of the illegal conduct, it may be admitted under the inevitable discovery doctrine. <ref> Nix v. Williams, 467 U.S. 431 (1984).</ref>

* ‘’’Confessions’’’ - Confessions resulting from an illegal seizure (defendant compelled to confess outside the presence of an attorney, after requesting an attorney) will be excluded from evidence. Nonetheless, confessions resulting from an illegal search or seizure are admissible if the link between the illegal conduct by the police and the challenged evidence is weak. For example, the police have probable cause to arrest an individual; they arrest the individual at home, without a warrant, and he thus confesses to the crime. This evidence would likely not be suppressed, particularly if the defendant were told of his right to remain silent and his right to counsel.

The rationale behind this rule is that the exclusionary rule is meant to deter police misconduct. If the link between the misconduct and the evidence is weak, then there is little use of applying the exclusionary rule.

* '''Good Faith''' - In ''United States v. Leon'' the U.S. Supreme Court concluded that the exclusionary rule does not apply to officers acting with an objectively reasonable belief that their conduct was not violating the defendant’s rights. For the exception to apply, good faith generally requires the existence of a search warrant issued by a neutral magistrate based on probable cause. The exception applies even if the appeals court determines sufficient probable cause did not exist to issue a warrant. There are four exceptions to this rule:
# Affidavit is so lacking in probable cause that no reasonable police officer would have relied on it.
# Warrant is defective on its face (fails to state with particularity the place to be searched or the things to be seized).
# Police officer or government official obtaining the warrant lied to or misled the magistrate.
# Magistrate has wholly abandoned his role.

* '''Standing''' - In ''Rakas v. Illinois'' the U.S. Supreme Court held that a person who is aggrieved by an illegal search or seizure, which occurred only through evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed. Therefore, the defendant cannot use the exclusionary rule to prevent the evidence from being admitted at trial.

* '''Civil Suits''' - Generally, the exclusionary rule only applies in criminal proceedings. Thus, the evidence may be admissible in a civil suit against the defendant for damages.

* '''Knock and Announce''' - In ''Hudson v. Michigan'' (2006), the U.S. Supreme Court concluded that a violation of the knock and announce rule does not require the exclusion of any evidence obtained pursuant to the search. The court concluded that the causal connection was remote and suppression would not serve the interest protected by the constitutional guarantee. After this case was decided, many academics warned that the Supreme Court would soon overrule the exclusionary rule, or replace it with a social costs balancing test.

* '''Evidence from Outside the Country''' - In'' United States v. Alvarez-Machain'', the U.S. Supreme Court held that an extradition treaty with Mexico does not bar jurisdiction of US court where defendant was forcibly extracted from Mexico. Treaty has no explicit prohibition and does not state that extradition is exclusive method of extraction.

==Germany==

Section 244 of the German Code of Criminal Procedure vests authority in the court to limit the admissibility of evidence. Section 244(3) states “[a]n application to take evidence shall be rejected if the taking of evidence is inadmissible.” Thus, the criminal court is required to reject an application if the evidence was illegally obtained. Section 136a of the Code of Criminal Procedure stipulates that in the preliminary inquiry the accused’s freedom to make up his or her mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, etc… Statements obtained in breach of this prohibition shall not be admitted into evidence, even if the accused agrees to their use. Evidence collected by creating an interference with fundamental rights will be admissible depending on whether the interference has some base in a special law rescuing it from inadmissibility.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

The Federal Constitutional Court of Germany requires determination of evidence admissibility through a balancing test that considers respect for human dignity in light of the severity of the crime being investigated. In particular, the Court ruled that there is a presumption in favor of the accused in certain circumstances that require a strict evaluation in favor of the accused. Such circumstances include searches and seizures within the accused’s home or conversations between the accused and a person “within his or her inner private sphere.” Nonetheless, the Court elaborates, “where no connection between a specific conversation and an individual’s inner private sphere exists, such conversations will not affect the human dignity aspect of the fundamental right.”<ref>Federal Constitutional Court, Germany, 1 BvR 2378/98 (2004).</ref>

=Spain=

Similar to Germany, Spain incorporates the exclusionary rule into criminal justice procedure through weighing the importance of preserving a fundamental right, such as right to privacy or right to a fair trial, and the reason for sacrificing such right.<ref>Spain Constitutional Court, First Chamber 26-03-1996 54/1996.</ref>

Further, Spain protects fundamental rights by evaluating the admissibility of evidence in a criminal trial through the prism of the “principle of proportionality.” Thus law enforcement agencies prior to collecting the evidence in question must prove 1) they are capable of producing the desired outcome; 2) the least intrusive alternative capable of delivering that outcome is being utilized; and 3) the intrusion must be proportionate to the benefit derived from the measure. Therefore, the principle requires a judge to consider not only the seriousness of the offense, but to also strictly adhere to the guarantees provide by a specific and reasoned judicial authorization.<ref>Raneta Lawsom Mack, Comparative Criminal Procedure: History, Processes and Case Studies.</ref>

=European Court of Human Rights=

The European Court of Human Rights adopted the position that the use of illegally obtained evidence does not necessarily lead to unfair proceedings.<ref>Eur. Ct. HR, ''Schenk v. Switzerland'' Judgement of 12 July 1988, Series A no. 140, and Eur. Ct. HR (3d sect.), Khan v. the United Kingdom (Appl. No 35394/97), ECHR 2000-V, judgement of 12 May 2000.</ref> The position of the Court is that it should generally be left to national courts to decide on the admissibility of evidence. Nonetheless, the Court ruled, “The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.”<ref>P.G. and J.H. v. the United Kingdom, judgment of 25 September 2001.</ref> The court went on to explain that determining admissibility involves an examination of the alleged unlawfulness in question and the nature of the violation. Thus the fairness of a trial is not necessarily corroded by the use of illegally obtained evidence.

In general, national rules of criminal procedure are more protective of the accused than the European Convention on Human Rights. Only seven States (Austria, Denmark, Finland, France, Germany, Sweden and the United Kingdom) admit evidence obtained in violation of the right to respect for private life. In most other member States, such evidence would not normally be admissible.

----
See [[Rights of the Accused]], [[Evidence]], [[Defenses]]
==Notes==
<references/>

Joint Representation of Criminal Defendants

2010-11-19T14:18:41Z

Jbraun:

=Background=

A lawyer should zealously assert a client's position under the rules of the local criminal justice system.<ref>Section 2, American Bar Association Model Rules of Professional Conduct - Preamble and Scope</ref> As a practical matter, this means that criminal defense attorneys should be wary of joint representation of criminal defendants. As courts have noted, “No man shall serve two masters.”<ref>Jeffry v. Pounds, 136 Cal. Rptr. 373 (Ct. Appl. 1977) quoting Matthew 6:24 (King James)</ref> However, under certain circumstances an attorney Attorneys may be permitted to represent multiple codefendants accused of a crime stemming from the same matter. This article explores the legal basis and background in the United States and abroad of representing multiple codefendants.

==Benefits of Joint Representation==
Lawyers have a strong financial incentive to accept cases involving joint representation because these cases often involved increased fees and lower administrative costs. Clients themselves may suggest joint representation both because of the convenience and the cost savings. In certain jurisdictions, the shortage of lawyers may also make joint representation more acceptable because this may be the only practical way for all criminal defendants to receive legal representation. Joint representation may also provide tactical advantages throughout the course of adjudication.

==Risks of Joint Representation==
Before accepting joint representation counsel should determine whether the defendants’ interests are adverse to one another, which is often very difficult to predict. Problems may manifest when one defendant’s defense is inconsistent with his or her codefendant’s defense. For example, when only one defendant is truly responsible, the attorney may be faced with the problem of admitting testimony that would exonerate one defendant while incriminating the other.<ref>Barr Ross, Joint Representation of Criminal Codefendants: A proposal to breathe life into Section 4-3.5(c) of the ABA standards relating to the administration of criminal justice. The Georgetown Journal of Legal Ethics, July 1 2002, http://www.allbusiness.com/legal/1096478-1.html</ref> A subtler problem is the appearance of guilt solely because the same counsel represents all defendants collectively. Further, issues involving confidentiality may arise, and the attorney’s independent professional judgment and loyalty may be compromised. Because of these problems, some legal scholars have advocated for an absolute ban on joint representation of clients in criminal and in civil cases.<ref>Bassett, Debra Lyn, Three's a Crowd: A Proposal to Abolish Joint Representation. Rutgers Law Journal, Vol. 32, p. 387, 2001. Available at SSRN: http://ssrn.com/abstract=1031514</ref>

===Potential Problems as a Result of Representing Co-Defendants===
* Conflict of Interest may arise as a result of trail tactics or testimony, during closing arguments, and during sentencing;
* Confidentiality Issues;
* Unfair outcome to one or both clients;
* One client may chose to accept a plea bargain;
* One client may be offered a plea bargain in exchange for testifying against the other client or other cooperation with the prosecution;
* Inability to challenge evidence prejudicial to one client, yet helpful to another;
* Inability to argue aggravating factors of other clients at sentencing or trial;
* One client’s confession may implicate the other client;
* Potential waste of time and resources if attorney must withdrawal late in the proceedings

===A conflict of interest may prevent an attorney from doing any one of the following===
* plea bargaining for one defendant to testify against another;
* challenging admission of evidence prejudicial to one client but favorable to another;
* arguing differing culpabilities of clients in sentencing in order to minimize the culpability of one by emphasizing that of another

==Remedying Conflicts of Interest in Joint Representation==

Attorneys have an affirmative duty to remedy a conflict of interest should it arise during joint representation. First, an attorney may withdraw from representing one or both clients. Second, an attorney may require defendants to sign waivers, although waivable conflicts in criminal cases would be very rare. Failure to remedy a conflict of interest may result in professional discipline or an action for malpractice on behalf of the defendants.

Defendants who are jointly represented by a single defense attorney may have a civil action against the attorney for professional malpractice if they can show they suffered damages and that the attorney violated professional standards. Finally, a defendant may have an appeal for ineffective assistance of counsel based on conflicts of interest.

==Joint Representation by One Firm==
Joint representation of co-defendants is generally prohibited by Legal Aid and Public Defender Offices in the United States because of the potential conflicts that may arise during the case. This prohibition applies to all lawyers in the office. As a result, outside counsel must be appointed to represent a co-defendant.

===Practice Tips for Lawyers Contemplating Joint Representation===
Criminal defense lawyers who are considering joint representation of two or more co-defendants should take several steps to determine if a conflict exists:
* Interview defendants separately in order to avoid accidental merger of defenses
* Conduct proper investigation to determine if the theory of the case is the same for both defendants.

=Country Specific Applications=

==United States==
Counsel may represent codefendants in the United States as long as an actual conflict of interest does not adversely affect the lawyer’s performance.<ref>Mickens v. Taylor, 122 S.Ct. 1237 (2002); Strickland v. Washington, 466 U.S. 668 (1984)</ref> Representation of codefendants is addressed in the American Bar Association Model Rules of Professional Conduct (Model Rules), The American Bar Association Criminal Justice Standards (Standards), and case law.

===American Bar Association Model Rules of Professional Conduct===
The Model Rules set forth standards of professional competence and ethical conduct for the legal profession.<ref>ABA Model Rules of Professional Conduct, Preface; http://www.abanet.org/cpr/mrpc/preface.html</ref> Two rules in particular apply to the representation of codefendants: 1) Rule 1.6 Confidentiality of Information; and 2) Rule 1.7 Conflict of Interest: Current Clients.

====Rule 1.6 Confidentiality of Information====
It is axiomatic that counsel may not reveal confidential information received from her client. Rule 1.6 of the Model Rules encompasses this fundamental ethical tenet.<ref>ABA Model Rules of Professional Conduct, Rule 1.6 (a). http://www.abanet.org/cpr/mrpc/rule_1_7.html “A lawyer shall not reveal information relating to the representation of a client…”</ref> When a lawyer represents codefendants she may receive confidential information detrimental to another codefendant. Such situation will cause a conflict of interest and thus counsel must take remedial steps to remedy the conflict of interest, including withdrawal.

====Rule 1.7 Conflict of Interest: Current Clients====
Rule 1.7(a) states that a concurrent conflict of interest exists if “the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client…” The Comment to Rule 1.7, paragraph 28, states that “The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.” Paragraphs 29-31 further define the lawyer’s ethical duty when representing multiple defendants. The comment sets forth the requirement of lawyers to remain impartial between commonly represented clients, and therefore, the lawyer must not represent multiple clients when impartiality is unlikely to be maintained. The comment also discusses the effect of multiple client representation on lawyer-client confidentiality and the attorney-client privilege, noting that the attorney client privilege does not attach between commonly represented clients. “As to the duty of confidentiality, the continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.”<ref>ABA Model Rules of Professional Conduct, Comment to Rule 1.6, paragraph 31. http://www.abanet.org/cpr/mrpc/rule_1_7_comm.html/</ref> If this situation arises, it is likely the lawyer withdraw from representation of all clients involved in the matter. This situation may arise in the event that counsel represents multiple codefendants, and additional expense and delay will be incurred if counsel must withdraw from representation.

===American Bar Association Criminal Justice Standard 4-3.5 Conflicts of Interest===
Standard 4-3.5 is a strong restriction against the joint representation of criminal codefendants, prohibiting all joint representations of criminal codefendants where any possible conflict may arise. Standard 4-3.5(c) states the following:

"Except for preliminary matters such as initial hearings or applications for bail, defense counsel who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty of another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one of several codefendants except in unusual situations when, after careful investigation, it is clear either that no conflict is likely to develop at trial, sentencing, or at any other time in the proceeding or that common representation will be advantageous to each of the codefendants represented…"<ref>http://www.abanet.org/crimjust/standards/dfunc_blk.html#3.5</ref>

Standard 4-3.5(c) does not promulgate a blanket prohibition on joint representation of criminal codefendants. It ensures that the only case where such representation will be tolerated is where the possibility of conflict is completely absent.<ref>Barr Ross, Joint Representation of Criminal Codefendants: A proposal to breathe life into Section 4-3.5(c) of the ABA standards relating to the administration of criminal justice. The Georgetown Journal of Legal Ethics, July 1 2002, http://www.allbusiness.com/legal/1096478-1.html</ref> Nonetheless, few decisions or even legal periodicals cite or implement Standard 4-3.5.<ref>Id.</ref>

===Case Law===

====Holloway v. Arkansas, 435 U.S. 475 (1975)====
In Holloway v. Arkansas, three defendants were charged with armed robbery and two counts of rape. One defendant confessed to police officers that he was the lookout while the others raped the women. The public defender, representing all three defendants, made a timely motion to appoint separate attorneys because of potential conflicts. The trial court denied the motion for counsel and motions to sever the trial. Shortly before the trial began, counsel renewed the motion. Several of the defendants indicated a desire to testify and he could not cross-examine them because of confidential information he received. The judge again denied the motions. At trial, the defendants choose to exercise their constitutional right to testify, and thus their lawyer was precluded from cross-examination. Instead, the judge required each defendant tell his story on the stand in a narrative fashion. All three defendants were convicted.

On appeal, the Supreme Court held that joint representation is not unconstitutional per se, but in this case the trial court “failed to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel.” The Court went on to rule that a trial court is not precluded from “exploring the adequacy of the basis of defense counsel’s representations regarding conflict of interests without improperly requiring disclosure of the confidential communications of the client.” The Court recognized that representing multiple defendants prevents counsel from doing many important tasks including: 1) plea bargaining for one defendant to testify against another; 2) challenging admission of evidence prejudicial to one client but favorable to another; 3) arguing differing culpabilities of clients in sentencing in order to minimize the culpability of one by emphasizing that of another. Thus the Court concluded that whenever a trial court improperly requires joint representation over timely objection reversal is automatic.

====Wheat v. United States, 486 U.S. 153 (1988)====
The Petitioner, along with other co-defendants, was charged with participation in a drug conspiracy. Attorney Eugene Iredale represented two defendants involved in the matter—the drug kingpin, who was acquitted on the drug charges, but subsequently pled guilty to tax evasion charges; and a smaller player in the conspiracy, who pled guilty. Just before trial, counsel proposed to represent the Petitioner as well. The government objected because the minor player would be called as a witness in the defendant’s trial and, if the kingpin’s tax evasion deal fell through, the defendant would likely be called as a witness in his trial. All three defendants waived the potential conflict of interest on the ground that it was speculative. The district court denied the motion to substitute counsel and allow counsel to represent the defendant.

On review, the Court reasoned that it was difficult for an attorney to evaluate the risks of conflict because unforeseen testimony or evidence can significantly shift the relationship between multiple defendants. “These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics.” Therefore, the Court held that trial courts “must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.”

=International Legal Precedent=

==Human Rights Treaties==

Although international treaties do not directly address the issue of multiple defendants, they do address the right to prompt legal assistance.<ref>Human Rights in the Administration of Justice: A manual on Human Rights for Judges, Prosecutors and Lawyers, pg 235.</ref> Prompt legal assistance upon arrest and detention is a fundamental legal right that helps provide an efficient defense and protects the physical and mental integrity of the person accused. All relevant human rights treaties guarantee the right of an accused to legal counsel of one’s own choosing (art. 14(3)(d) of the International Covenant, art. 7(1)(c) of the African Charter and art. 6(3)(c) of the European Convention).<ref>Human Rights in the Administration of Justice: A manual on Human Rights for Judges, Prosecutors and Lawyers, pg 235</ref>

Article 8(2)(d) of the American Convention on Human Rights goes one step further and provides that an accused has the right “to communicate freely and privately with his counsel.” Rule 93 of the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners provides that, “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions.” The Standard Minimum Rules for the Treatment of Prisoners adopted by the Committee of Ministers of the Council of Europe by resolution (73)5 sets forth similar guidelines requiring that an accused be provided legal aid and the ability to communicate in confidence. Thus, it is possible to argue that such treaties are violated when a single lawyer represents codefendants due to lack of a confidential relationship between lawyer and client.

===International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)===

The ICTY and ICTR address potential issues arising from the representation of multiple defendants in their respective codes of professional conduct. Article 13 of the ICTY’s Code of Professional Conduct for Counsel Appearing Before the International Tribunal states: “Whether or not counsel continues to represent a client, counsel shall preserve the confidentiality of the client’s affairs and shall not reveal to any other person, other than to members of his team who need such information for the performance of their duties, information which has been entrusted to him in confidence or use such information to the client’s detriment or to his own or another client’s advantage.” (emphasis added). Article 14 of the same treaty sets forth rules regarding Conflicts of Interest. Section d prohibits representation of a client if that client or another client may be adversely affected by such representation.

Articles 8 and 9 of the ICTR’s Code of Professional Conduct for Defence Counsel address confidentiality and conflict of interest respectively. Article 8 mirrors the ICTY’s Article 13 requiring confidential communications, and Article 9 mirrors the ICTY’s preclusion of representation that may cause a client to be adversely affected.

=References=
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Joint Representation of Criminal Defendants

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Jbraun:

Joint Representation of Criminal Defendants

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