Exclusionary Rule - Revision history

Ibjadmin at 13:45, 16 February 2011

2011-02-16T13:45:55Z

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	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.		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=		=Country-Specific Standards Governing Exclusion of Illegal Evidence=

	==China==		==China==
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	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>		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=		==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>		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>

Jbraun: /* Exceptions to the Exclusionary Rule */

2010-11-23T11:17:56Z

Exceptions to the Exclusionary Rule

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	*'''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>		*'''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.		*'''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.

	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:		*'''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:

Jbraun: /* Exceptions to the Exclusionary Rule */

2010-11-23T11:17:21Z

Exceptions to the Exclusionary Rule

Jbraun: /* Exceptions to the Exclusionary Rule */

2010-11-23T11:15:24Z

Exceptions to the Exclusionary Rule

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	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:		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>		*'''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>		*'''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.		* ‘’’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.		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.

Jbraun at 11:13, 23 November 2010

2010-11-23T11:13:57Z

Show changes

Jbraun: /* Background */

2010-11-10T11:01:46Z

Background

← Older revision		Revision as of 13:01, 10 November 2010
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	=Background=		=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. ~~The rationale~~ behind this rule ~~is that if the government cannot use the~~ evidence ~~in a criminal trial, it~~ will be ~~less likely to~~ conduct ~~illegal search~~ and ~~seizures in~~ the ~~future~~.		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 this rule, including: 1) deterrence of law enforcement officials from engaging in prohibited conduct since valuable evidence will be lost if such conduct ensues; and 2) preservation of judicial integrity because the court is untainted by unlawful police conduct.

	The exclusionary rule was applied in 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). This rule applies 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.		The exclusionary rule was applied to 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). This rule applies 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.

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

Ibjadmin: /* France */

2010-10-04T13:01:19Z

France

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	==France==		==France==

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

	====Nullity of Procedures====		====Nullity of Procedures====

Jyoder: /* Nullity of Procedures */

2010-08-24T08:43:30Z

Nullity of Procedures

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	====Nullity of Procedures====		====Nullity of Procedures====
	'''Textual Nullity''' - Textual nullity applies when a given rule explicitly includes a provision for the exclusion of evidence if the procedure is violated. Because textual nullity is mandatory, the court must also prohibit the use of all fruits of the illegal procedure.		'''Textual Nullity''' - Textual nullity applies when a given rule explicitly includes a provision for the exclusion of evidence if the procedure is violated. Because textual nullity is 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 is generally required to show actual harm or [[Standing \| standing]], though this need not be proven if the procedural error harmed public order.		'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant is generally required to show actual harm or [[Standing \| standing]], though this need not be proven if the procedural error harmed public order.

	====Involuntary Confessions====		====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.		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.

Jyoder: /* France */

2010-08-24T08:43:20Z

France

← Older revision		Revision as of 10:43, 24 August 2010
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	==France==		==France==
	~~France has an exclusionary rule, however it is much narrower than the U.S. exclusionary rule.~~

	The closest concept to the exclusionary rule in French criminal procedure is the concept of nullities.		The closest concept to the exclusionary rule in French criminal procedure is the concept of nullities.

Jyoder: /* Involuntary Confessions */

2010-08-24T08:42:55Z

Involuntary Confessions

← Older revision		Revision as of 10:42, 24 August 2010
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	'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant is generally required to show actual harm or [[Standing \| standing]], though this need not be proven if the procedural error harmed public order.		'''Substantial Nullity''' - In all other cases, a nullity procedure may be used if the government violates a "substantial" provision of the code. A defendant is generally required to show actual harm or [[Standing \| standing]], though this need not be proven if the procedural error harmed public order.
	====Involuntary Confessions====		====Involuntary Confessions====
	Even if all formal criminal procedures are done correctly, a confession may still be inadmissible if it is extracted using [[~~torture \|~~ Representing Victims of Torture]] or deceptive investigatory techniques.		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==		==South Africa==