Exclusionary Rule

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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 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.

Example: Baltimore Police break into defendants home without a warrant, 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 doctrine of the fruit of the poisonous tree, any evidence obtained as a result of illegally obtained evidence must also be excluded from evidence. However, 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 primarily illegality, the evidence to which the instant objection is made has been come at by means sufficiently distinguishable to be purged of the primary taint." Later courts have recharacterized the test as "attenuation" not "taint".

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 the criminal defense attorney can show that 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 even evidence obtained by an illegal search or stop even though the evidence would otherwise be completely reliable. The rationale behind this second rule is that government should not be able to benefit from violating a country's laws and that the exclusionary rule will create a deterrent effect, protecting others in the future.

International Standards Governing Exclusion of Illegal Evidence


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 issued Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases.

Under these rules, illegal oral evidence obtained through illegal means such as coerced confessions as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats shall be excluded and may not serve as the basis for conviction.[1]Furthermore, the people's procurator may not use the evidence as the basis for approving arrest or initiating prosecution.[2] The new rules do not say anything about whether or not the fruits of an illegal confession can also be used against the defendant if the oral evidence is excluded from trial. Nor does it say whether the evidence could be used in impeachment if the defendant opens the door to cross-examination on that subject area during his direct examination.

Rules for Illegal Searches and Seizures

It does not appear as through there are any rules that would exclude evidence that is a product of an illegal search or seizure in China.


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

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.

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, though 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 torture or deceptive investigatory techniques.

South Africa

Prior to 1994 South Africa had no equivalent ot the U.S. Bill of Rights. This changed with the enactment of the interim constitution in 1994. The 1996 constitution was very progressive and borrowed heavily from international instruments and U.S. legal constructs such as Miranda warnings. Prior to the enactment of new constitution the general rule in South Africa was that all relevant evidence was admissible and evidence would only be excluded on a showing of a deliberate violation of an individual's rights.

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

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.

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 interrogation of individuals. Thus,failure to deliver the warnings may also result in 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 one of two conditions is met:

  1. The evidence would render the trial unfair -
  2. Admitting the evidence would be detrimental to the administration of justice -

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

United States

Rules for Illegal Interrogations

Rules for Illegal Searches and Seizures

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

  • Good Faith - In United States v. Leon the U.S. Supreme Court concluded that officers acting in good faith with search warrant issued by neutral magistrate based on probable cause cannot trigger exclusionary rule, even if appeals court determines probable cause did not exist. There are four exceptions to this rule:
  1. Affidavit is so lacking in probably cause that no reasonable police officer would have relied on it.
  2. Warrant is defective on its face (fails to state with particularity the place to be searched or the things to be seized).
  3. Police officer or government official obtaining the warrant lied to or misled the magistrate.
  4. 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 and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his fourth amendment rights infringed and therefore cannot use the exclusionary rule to prevent the evidence from being admitted at trial.
  • Other Uses - Evidence which would otherwise be inadmissible at trial may be used for other purposes such as grant jury proceedings, bail hearings and other preliminary matters as well as sentencing and parole hearings.
  • Civil Suits - Generally, the exclusionary rule only applies in criminal proceedings. Therefore, the evidence may be admissible in a civil suit against the defendant for damages.
  • Independent Source - The exclusionary rule would not apply if the government learned of the same information through an independent source.
  • Inevitable Discovery - A variant of the "indepenent source" exception, a court may hold that the exclusionary rule does not apply if the evidence would have been discovered regardless of the error. Generally, to trigger this rule the government must show that evidence would have been discovered, not that it could have been discovered.
  • 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.

See Rights of the Accused, Evidence, Defenses


  1. 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
  2. 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