Shellie Labell was one of professor Birdsong’s best students at Barry Law.  She graduated in December 2013, and is now off pursuing a PhD degree in History. While at Barry she wrote a  number of very good seminar papers. In her last paper written for my Criminal Justice Administration  seminar she did a comparative analysis of the United States’ exclusionary rule with such rules from other countries.  Our exclusionary rule grows out of Fourth Amendment jurisprudence and provides that illegally obtained evidence can not be used at trial against an accused. Many people think the exclusionary rule is solely an American concept.

Read Ms. Labell’s paper and you may come to a different conclusion.

Enjoy!

The Exclusionary Rule: A Comparative Analysis

Shellie Labell © 2013

I. Introduction

During the summer of 2012 I attended a study abroad program at the University of Vienna with a dozen or so other Barry students. One of our guest lecturers was Dr. Michael Schwab, an Austrian Supreme Court justice. He told us during his lecture that there is no exclusionary rule in Austria because “a criminal is a criminal” and that all evidence is deemed admissible, even if obtained illegally. He went even further and said that the United States is the only country that has an exclusionary rule.

That sounded extremely suspect to me and piqued my interest. I started looking around online to find out if what he was saying is indeed true. Indeed, what he said is mostly true in Austria. Yet in all the other countries I’ve researched, there is indeed some form of exclusionary rule[1] for evidence obtained illegally, be it confessions elicited through torture, coercion or other illegal means, or physical evidence obtained through the misdeeds of the police.

The baseline comparison in this paper is, out of necessity, from the point of view of a person who has primarily studied United States law. Although this article is Euro- and Anglo-centric, I have chosen a variety of countries as well as the entity of the United Nations in an attempt to offer a more inclusive view of the exclusionary rule.

Another clarification I’d like to offer my readers is that some of the sections are more case-law intensive than others. Germany and Russia are somewhat more difficult to find illustrative case law on, as these are countries which follow the Romano-Germanic (“civil law”) tradition, which does not rely on case law as precedent. This also means that not as many opinions written and published as there are in England, Canada and the United States, which (for the most part) follow the common law tradition of developing and relying on case law as binding, or at least guiding, precedent.

The scope of this paper is limited to criminal proceedings. While there are rules governing the admission of evidence in civil proceedings, I feel that the defense of a person facing loss of his freedom and civil rights is a much more pressing matter than the mostly financial focus of civil cases.

 

A. What is an Exclusionary Rule?

          Simply stated, the exclusionary rule is a legal concept allowing or mandating the exclusion of evidence, either physical or confessional, obtained in a manner that is illegal under that jurisdiction[2]’s law. This can refer to confessions extracted through torture, threats, or inhumane conditions. The rule is also applied in some jurisdictions to exclude evidence that was seized during a police search in which the proper protocols were not followed (such as failing to meet the requirement for a warrant where applicable), or where there was not enough probable cause to legally allow a search or seizure.

The exclusionary rule is commonly found in a country’s code of criminal procedure or its constitution, but sometimes it is contained in separate legislation, such as the Police and Criminal Evidence Act of 1984 in the United Kingdom.

 

B. What is the Purpose of an Exclusionary Rule?

          There are two major rationales for having an exclusionary rule. Courts in some jurisdictions use the exclusionary rule as a deterrent to illegal police action, while others use the rule in a manner more focused on the defendant’s civil rights. However, I am seeing in cases in several jurisdictions which consider both the defendant’s rights and deterrence when considering the purpose of the exclusionary rule when determining whether illegally obtained evidence should be admitted into court proceedings.

 

C. Variables Affecting the Application of an Exclusionary Rule

          Deciding whether or not to admit a piece of evidence obtained through illegal means is not black and white. Factors affecting admission of this evidence are whether the violation was a flagrant one or merely a clerical error, whether or not the judge has discretion in admitting or excluding the evidence, the type and severity of the crime alleged, and the probative value of the evidence. This is not meant to be an exhaustive list; these are simply the major considerations that came up the most often during my research. Based on the research I’ve done and the case law I’ve read, some jurisdictions focus more strongly on some of these factors and give others relatively little weight.

 

II. United Nations

ICTY Statute Rule 95

No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.[3]

 

I thought the United Nations was worthy of mention within the scope of this article, as many cases involving dubiously obtained confessions and evidence end up on appeal in the International Criminal Court (“ICC”), the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), or in the International Criminal Tribunal for Rwanda (“ICTR”).

The ICTR’s exclusionary rule has the goal of achieving four main objectives: to “discourage human rights violations in the gathering of evidence; to exclude evidence obtained by illegal means, such as torture, for reasons of unreliability; to avoid tainting the judicial process; and to protect the fundamental interests of justice with respect to due process and the rule of law.”[4]

 

A. The Prosecutor v. Mucić

 One such case, The Prosecutor v. Mucić[5], dealt with the trial of a Yugoslavian prison camp commandant who was accused of torture and other war crimes during the Bosnian War. Zdravko Mucić  was found and arrested in Vienna and interrogated by five different officers, denied counsel, denied the right to remain silent, and was induced into confessing after almost five hours of interrogation by the Austrian police. Austrian officials turned Mucić over to the ICTY, where he sought to have the statements he made in Vienna suppressed.

 

B. Statute of the ICTY and ICTR

Neither the ICTY nor the ICTR are bound by the member nation’s rules of evidence, but rather are ruled by the tribunal’s own code of criminal procedure.[6][7] If the national law (Austrian law in this case) conflicts with the rules in the ICTY/ICTR statute, the statute prevails in the international courts. In Mucić’s case, some, but not all, the statements he made were suppressed as having violated the human rights standards laid out by the tribunal, specifically codified in Rule 95 of ICTR Rules of Procedure and Evidence. The court reduced his sentence as a result of these violations.

The ICTY, ICTR, and ICC, while useful United Nations bodies, only have jurisdiction over certain types of crimes. These courts only have jurisdiction over cases involving genocide, crimes against humanity, war crimes and the crime of aggression.[8] So while not every case involving illegally obtained evidence may be taken to the United Nation courts, it is a venue whose laws are based solely in consideration of human rights, and not the legislative whims of the country where the person was arrested and originally tried.

III. United States of America

United States Constitution, Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[9]

 

          The United States has the most liberally applied exclusionary rule in the world. While not directly addressed, the fourth amendment of the United States Constitution is used as the basis for exclusion in case law regarding matters of the exclusion of illegally obtained evidence. The Fifth Amendment, which deals with due process, also can be applied, but the fourth amendment dealing with searches and seizures is the primary basis used when arguing for the exclusion of evidence.

 

A. History of the Exclusion of Evidence

          In 1897, the United States Supreme Court decided in Bram v. United States that involuntary confessions were inadmissible as evidence.[10] However, this rule was only applicable to confessions, which more properly fall under the Fifth Amendment rule against self-incrimination.

It wasn’t until 1914 when, in a unanimous decision, the Supreme Court held that a warrantless search and seizure of items from a private home was a violation of the fourth amendment and that the evidence seized illegally could not be used against the defendant in a federal court.[11] In the 1961 case Mapp v. Ohio, the Supreme Court expanded this to apply to state courts as well.[12]

 

B. Purpose and Case Law

          The purpose of the exclusionary rule in the United States is, depending on the case, either to deter police misbehavior, to protect the privacy rights of the accused, or a combination of the two. United States v. Calandra (1974) held that the “prime purpose of the exclusionary rule is to was not to redress the injury to the privacy of the search victim, the prime purpose of the rule was to deter future unlawful police conduct”.[13]

On the other hand, the Weeks court reasoned that “evidence obtained through a search and seizure violative of the defendant’s rights under the Fourth Amendment could not be used in support of a conviction”, and that “if the items seized in violation of the protection of the Fourth Amendment rights could be admitted in evidence against a citizen accused of an offense, ‘the protection of the Fourth Amendment might as well be stricken from the Constitution’”.[14] The Mapp court took a hybrid approach and “justified…the rule…on the twin grounds”.[15]

In United States courts, application of the exclusionary rule is mandatory. Judges do not have discretion pertaining to the exclusion of evidence, and a conviction based on improperly admitted evidence is grounds for an appeal.

The exclusionary rule in the United States is controversial for many reasons. One argument against the exclusionary rule as a deterrent is that it simply doesn’t work. According to legal scholar and Professor Tonja Jacobi, “Whether measured in terms of arrests, convictions, or exclusions at trial, the empirical literature has failed to establish either the benefits or the costs of the exclusionary rule”.[16]

 

C. Criticism of the Exclusionary Rule

          Perhaps the most famous criticism of the exclusionary rule is enshrined in the quote by United States Supreme Court Justice Benjamin Cardozo, who said “the criminal is to go free because the constable has blundered”.[17] That is, justice is not served just because someone in law enforcement made an error. Many arguments on either side can be made, but for the sake of brevity I will move forward with my comparative analysis of exclusionary rules.

IV. United Kingdom

Police and Criminal Evidence Act of 1984

§78 Exclusion of unfair evidence:

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.[18]

 

“It matters not how you get it if you steal it even, it would be

admissible in evidence.”[19]– Crompton, J. (1861)

 

          The above quote sums up the English method of dealing with illegally obtained evidence at common law. If physical evidence was relevant, it was admissible.[20] The judge did have discretion to exclude evidence if it would result in an unfair trial, but this was rarely used.

 

A. History of the Exclusion of Evidence

Two eighteenth century cases, The King v. Warwickshall [21] and The King v. Thompson[22], did provide for the mandatory exclusion of confessions deemed to be coerced because forced confessions were deemed to be unreliable. Reliability was the primary factor for exclusion, and neither the discretionary physical evidence rule nor the mandatory confession rule were used as a police deterrent.[23]

 

B. Police and Criminal Evidence Act (PACE)

          The 1984 implementation of the Police and Criminal Evidence Act (“PACE”) broadened the common law rules for illegally obtained evidence. The new rule is purely discretionary[24] and mostly affects cases at the trial level.

Under PACE, fairness is the driving factor for the exclusion of evidence obtained through improper means. Legislative records also show that “Parliament, when enacting PACE, intended to have the courts use the exclusionary rule as a means to deter police illegality”.[25] PACE has expanded both the application and the rationale for the exclusionary rule in England. Two sections of PACE deal with the exclusion of evidence. Section 76 deals with the common law rule regarding coerced confessions, and section 78 “grants the courts the discretion to suppress any evidence that would have ‘adverse effect on the fairness of the proceedings.’”[26] The burden is also shifted to the prosecution to show that the confession was not obtained via coercion.[27]

 

C. Purpose and Case Law

          Evidence was excluded in Chapman v. D.P.P. when police entered a man’s home illegally and arrested him without reasonable suspicion that he had committed a crime.[28] Although one PACE’s goals is “policing the police”, in Regina v. Alladice, the court “permitted the admission of a confession police obtained in violation of the suspect’s right to counsel.”[29] According to King’s College Professor of Forensic Psychology Gisli Gudjonsson, “[a]cting in good faith does not excuse police officers committing serious breaches and acting in bad faith will usually result in exclusion of the evidence”.[30]

Since 1984, evidence has frequently been excluded and many convictions have been overturned due to improperly obtained evidence and/or confessions, but as it is a discretionary rule under §78, courts have ruled both ways in cases where evidence or confessions were obtained in violation of English law. Since this is a relatively new body of law, the House of Lords has not established a “body of search-and-seizure cases in which the exclusionary remedy has been applied, and no guidelines for exclusion exist”.[31]

 

V. Canada

Canadian Charter of Rights and Freedoms (1982)

 

Enforcement: Where, in proceedings…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the cir­cumstances, the admission of it in the proceedings would bring the ad­ministration of justice into disrepute.[32]

 

A. History of the Exclusion of Evidence

          The Canadian approach to evidence has historically been one of inclusion of relevant evidence, regardless of how it was obtained. This is primarily a result of the English influence on Canadian law, as English case law was, and still is to some extent, used as established precedent in Canadian courts.

As late as 1970, the court in R. v. Wray ruled that a trial judge had no discretion to exclude evidence because it was illegally or unfairly obtained.[33] This directly followed the precedent set by the 1955 English case Kuruma v. The Queen[34].

The Wray court also held that the exclusion of illegally obtained evidence was “limited to evidence gravely prejudicial to the accused, the admission of which is tenuous and whose probative force in relation to the main issue before the court is trifling”.[35] Other than this criteria, evidence could only be excluded if it was irrelevant or unreliable.[36]

 

B. Canadian Charter of Rights and Freedoms (1982)

          After the passage of the Canadian Charter of Rights and Freedoms (“Charter”) in 1982, however, a much broader view of judicial discretion regarding exclusion of illegally obtained evidence was taken. §24(2) (supra) is the primary applicable provision in the Charter dealing with illegally obtained evidence. Influenced by the United Nations Universal Declaration of Human Rights[37], the Charter replaced the 1960 Canadian Bill of Rights, which was a federal statute, not part of the Canadian Constitution and so did not apply to provincial courts.

C. Purpose and Case Law

          The Charter quickly spawned a rather substantial body of case law favoring exclusion where admission of the ill-gotten evidence would either render the trial unfair or bring the judicial system into disrepute. R. v. Collins[38] established the “Collins test”, otherwise known as the “disrepute test”, which “determin[ed] whether the admission of the evidence…would tend to bring the administration of justice into disrepute”.[39]

A later case, R. v. Jacoy[40], expanded and clarified this vaguely worded rule by using a three-part test. First, exclusion of the evidence must not adversely affect the fairness of the trial. Second, the seriousness of the violation must also be considered. And third, the most often cited consideration in the case law I have found, the admission or exclusion of evidence must not have a negative effect on the reputation of the administration of justice.[41]

Later cases have fine-tuned the rule, rendering it more similar to the United States exclusionary rule rather than the English rule. For example, all evidence (physical and confessional) obtained as part of the “chain of events” involving the breach will be excluded under §24(2)[42], similar to the United States’ “fruit of the poisonous tree” doctrine. Additionally, a showing of bad faith by the police makes it more likely that questionably obtained evidence will be excluded, whereas evidence obtained illegally due to good faith errors are more likely to be admitted.[43]

 

VI. Federal Republic of Germany

Code of Criminal Procedure

 

Prohibited Methods of Examination:

(1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by criminal procedure law…

(2) Measures which impair the accused’s memory or his ability to understand shall not be permitted.

(3) The prohibition under subsections (1) and (2) shall apply irrespective of the accused’s consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.[44]

 

A. History of the Exclusion of Evidence

The most unique aspect of the German legal system is the enormous emphasis on the privacy of a person and the inviolability of the home. This is partially the result of the National Socialist concept of Gleichshaltung[45], whereby the German state ensured access to every aspect of a person’s life and police had extra-judiciary powers to enforce laws without the checks-and-balances of a magistrate. Therefore in post-1945 West Germany and post-1990 Federal Republic of Germany, cases dealing with exclusion of evidence focus primarily on the privacy of the individual rather than a deterrent to misbehavior by law enforcement.

 

B. Purpose and Case Law

          There are two main constitutional principles considered when determining whether to admit or exclude ill-gotten evidence: Rechtsstaatprinzip (rule of law, or due process) and Verhältnismässigkeit (principle of proportionality). Generally speaking, if either factor is defective, then the evidence will probably be excluded.

A good example of the proportionality doctrine is demonstrated in Judgment of June 10, 1963.[46] In that case, the federal constitutional court that “the taking of spinal fluid from a suspect to determine his possible insanity…was held to be out of proportion to the misdemeanor charge against the suspect”.[47] This concept stems from a 1966 case which established the “least drastic means” test, which demands that “if less intrusive measures will suffice, a greater intrusion will not be permitted”.[48],[49]

Like I said above, privacy is a major concern in Germany. The very first clause in Article I of the German Constitution[50] states that “[t]he dignity of man is inviolable”. Article X contains strong provisions for privacy: “Privacy of letters, posts and telecommunications shall be inviolable”.[51]

The privacy provisions were tested in a 1964 case colloquially referred to as The Diary Case[52], in which the courts excluded a private diary in a trial for perjury. This case, among others around the same time, established two “spheres” of privacy: the Kernbereich[53] and the Privatbereich[54]. The Kernbereich is the absolutely inviolable sphere that is not subject to any balancing tests of proportionality; it is absolutely protected, such as the defendant’s diary in this case. The Privatbereich is a less restrictive sphere in which the balancing of public versus private interests applies; “[it] could be intruded on, but only in the event of an overriding public interest”.[55]

One thing to note is that this case law was established while Germany was divided into East Germany and West Germany. All the case law I have found is from West Germany; East German case law seems almost non-existent, which is not surprising considering the secretive norm that was Soviet-occupied East Germany.

 

VIII. Russian Federation

Constitution of the Russian Federation

 

In administering justice it shall not be allowed to use evidence received by violating federal law.[56]

 

 

A. History of the Exclusion of Evidence

 

          The last country I selected to write about is, to me, the most interesting by far for many reasons. The Russian Federation is a very new creation; the current governmental system is only two decades old and is continually developing into something new. The collapse of the Soviet Union in 1991 ushered in a semi-presidential republic and representative democracy.

The current Russian Constitution is only twenty years old, and has yet to develop a large body of case law dealing with exclusion of evidence. The Criminal Procedure Code (“CPC”) is also very new, having replaced the Soviet code in 2001. The European Convention for the Protection of Human Rights has played a large role in shaping the new policies of the Russian Federation, such as officially moving away from the Soviet model of extracting confessions and uncovering evidence, which often involved torture and other coercive methods.[57]

 

B. Case Law

 

I write that Russia is “officially” moving away from the Soviet model because the reforms ushered in with the new regime are often ignored in reality. A 2002 European Court of Human Rights (“ECtHR”) case, Kalashnikov v. Russia, held Russia “liable for pretrial detention conditions that were tantamount to torture.”[58] Kalashnikov was detained on charges of embezzlement in 1995 and was kept in detention because he refused to submit banking documents that were to be used as evidence during the investigation.

He repeatedly submitted motions to change his detention conditions, as allowed by the Russian CPC, but was denied based on suspicion that he would interfere with the investigation if released. Kalashnikov’s health continued to deteriorate under the extremely poor conditions of his detention facility.

After his conviction at the trial level, he appealed all the way to the Russian Supreme Court, who affirmed the conviction. Kalashnikov appealed to the ECtHR, claiming that the deplorable conditions and unreasonable length of his detention violated his rights guaranteed under provisions in both the Russian CPC and the ECtHR Charter dealing with the prohibition of torture, right to liberty and security, and the right to a fair trial with the right against self-incrimination.”[59]

Kalashnikov’s refusal to submit self-incriminatory documents into evidence ultimately led to a five year detainment during the trial proceedings. The ECtHR determined that this was an unreasonable length for the proceedings, and under pressure from the ECtHR, the Russian authorities granted amnesty to Kalashnikov.

While the Kalashnikov case does not directly deal with the exclusion of evidence, it is a good indicator of the difficulty that can arise when attempting to assert one’s human rights in a Russian court.

There is also the problem that when “a defendant successfully suppresses illegally gathered evidence…it is not infrequently the prosecutor…which complains that their adversary rights…have been violated, resulting in the reversal of acquittals”.[60] An application of this is in the 1997 Nikitin attempted murder case[61], where an acquittal was overturned based on the initial exclusion of a report of an illegal search of a house where a knife was found. I’ve found case after case where acquittals were reversed due to the prosecution appealing based on excluded evidence.[62]

The conclusion I’ve drawn from the Russian cases I’ve read is that there is very little consistency in the application of the rule of law. Despite the human rights-based Russian Constitution and Criminal Procedure Code, the application is far less humane and far more unpredictable than a reading of the law would lead one to believe.

 

 

IX. Conclusion

In the course of my research, I haven’t come to the conclusion that one country’s official policy of the inclusion or exclusion of evidence is superior or inferior to another’s. In countries where police misconduct is rampant, such as in the United States, it makes sense to have rules protecting the accused from illegally obtained evidence. In countries like Germany, however, where the police are very well trained and more disciplined, it’s not as necessary to have rules excluding evidence for errors that do not affect the fairness of the trial.

The issue at hand does not seem to be whether or not an exclusionary rule exists in any given nation’s laws, but rather if, when, and how it is applied. In relatively new regimes like the Russian Federation, it remains to be seen how the interaction of law and application will develop, and wi

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