What counts is the unlawful intrusion by a state agent into the protected sphere of an individual. Although rules on standing can be informed by various procedural considerations, the logic of the human rights rationale suggests limiting standing to the individual affected by the violation or his survivors if he was killed.
In summary, the ideal type of an exclusion system based on a human rights rationale has these key features: Exclusion of evidence is an invariable consequence of any violation of an individual human right.
Exclusion extends to violations that occurred unintentionally and also to evidence indirectly derived from the original violation. Only the individual affected has standing to demand exclusion; he or she may also waive exclusion, which is binding on the court. Do real world systems reflect the ideal types described above? Can we detect any doctrinal patterns based on the rationale adopted?
Legal systems do not tend to subscribe unconditionally to the ideal types as described here. In fact, many jurisdictions ground their exclusionary rules on more than one rationale. The mix of rationales—which the law often fails to spell out clearly—makes it difficult to predict the actual scope of exclusionary rules in any given legal system. Even where one rationale is dominant, courts and scholars often seek to accommodate subsidiary rationales as well.
They may do so expressly by adopting a balancing test, or indirectly by carving out exceptions to categorical rules. In this section, we examine to what extent selected legal systems rely on one of the doctrinal bases identified above, and how that choice is reflected in the actual features of exclusion of illegally obtained evidence. For that purpose, we group legal systems along the three ideal types identified above, i.
Canada and Israel are examples of legal systems that ground their exclusionary rule on a systemic integrity analysis. Empirical studies of rates of exclusion, however, suggest that the Canadian balancing test is more robust and more likely to produce exclusion than the Israeli approach.
Differentiation among various rights occurs in both Canada and Israel. Both Canadian and Israeli courts, as expected, take the good faith of the individual police officer into consideration when deciding on the exclusion of evidence. Conduct that involves an intentional violation on the part of the investigation authorities may, therefore, be a circumstance of considerable weight for declaring the evidence inadmissible even when the defect is not serious.
It is worth noting, however, that while culpability of the officers is relevant, good faith does not automatically make the resulting evidence admissible in either Canada or Israel.
With regard to the issue of standing , the Canadian Supreme Court has held that an accused may invoke the exclusionary rule only if the police misconduct affected his personal right. This short overview of two systems that both rely on an integrity approach to exclusion shows some similarities but also suggests that the same approach can yield different doctrinal paths.
On some of the doctrinal touchstones, the two systems are in harmony and in line with our expectations, but in other regards both of them depart from the model of system integrity outlined above. In the United States , the exclusionary rule is based on a deterrence-oriented analysis. Consistent with the expectation of the model, the U. On the other hand, the U. Supreme Court has in recent years applied a cost-benefit analysis, weighing the deterrence benefits of exclusion against its social costs.
This approach has led to the recognition of an increasing number of exceptions to the exclusionary rule 60 and is moving the U. Concerning the possible differentiation among various rights , the U.
Supreme Court has not expressly acknowledged a differential treatment based on the right violated, yet its jurisprudence shows that mandatory exclusion is more likely to apply to coerced confessions, unlawful searches of a home, and particularly invasive body searches.
As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The Court has therefore rejected arguments that exclusion can be used more broadly to encourage police departments to adopt more rigorous training programs that help prevent even negligent mistakes by police officers. In line with its emphasis on deterring police misconduct, the U. For example, it has approved the admission of derivative evidence if the connection between the original violation and the evidence in question has been attenuated e.
The Court justified these limitations on the exclusionary rule by pointing to the high costs of excluding probative evidence and the limited deterrent effect of excluding evidence that either has been or would have been discovered independently by lawful means. With regard to the issue of standing , the United States Supreme Court has limited the right to invoke the exclusionary rule to individuals directly harmed by the misconduct.
Yet the Court has refrained from extending standing to third parties, even in cases where it was clear that police intentionally conducted an unconstitutional search of a person who would not have standing in a criminal case to move for suppression of the evidence.
Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected […].
Since our cases generally have held that one whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure, misgivings as to the benefit of enlarging the class of persons who may invoke that rule are properly considered when deciding whether to expand standing to assert Fourth Amendment violations.
In this context, the Court seems to be mixing rationales, weighing the goal of truth-seeking, on the one hand, against the goal of deterring misconduct. We thus see that, like Canada and Israel, the United States is another example of a system that in practice departs in several respects from the exclusionary model it purports to follow.
Greece is an example of a legal system regarding exclusion of evidence as a means of vindicating fundamental individual rights. The courts have extended the application of this article to other serious violations of constitutional provisions, such as the use of torture in violation of Art. Although the Greek system comes close to the ideal type of a human rights based system, it does not fit the model in all respects.
For example, courts have fashioned broad standing rules that allow third parties to invoke the exclusionary rule. But perhaps the broad Greek rule can be explained by the fact that Greece aims at making sure that no evidence based on human rights violations will be accepted by the courts, even when this may overcompensate individual litigants in some cases.
Furthermore, Greek courts have occasionally strayed from the broad rights-based approach to exclusion. Another example of a rights-based approach to exclusion is that of Ireland—at least, it was until Yet after criticism of the broad Irish exclusionary rule by a number of judges and policymakers, the Irish Supreme Court in drastically reduced its scope, holding that an inadvertent breach of the law in the gathering of evidence would not lead to exclusion.
The Greek and Irish systems of exclusion suggest that even seemingly absolute, rights-oriented approaches to exclusion at times give way to exceptions or balancing tests. Several legal systems have refrained from defining a single rationale for their exclusionary rules.
Three of the countries discussed in this volume—Switzerland, Germany, and Taiwan—are examples of such hybrid systems. The German and Swiss models have been grounded on the need to vindicate individual rights as well as to protect the rule of law. In Taiwan, the judiciary introduced an exclusionary rule in , which was subsequently codified by the legislature as part of a broader effort to break with the legacy of a decade-long authoritarian regime.
The rationale for the Taiwanese exclusionary rules is to protect individual rights and safeguard the rule of law and judicial integrity. The balancing takes into account a host of factors, but ultimately aims to weigh the protection of individual rights against the public interest in the enforcement of criminal law.
The German and Swiss approaches to exclusion similarly follow a dual approach, with some rules, such as those pertaining to coerced confessions, resulting in mandatory exclusion, while others balance the public interest and individual rights.
These systems share a tendency toward categorically excluding evidence if certain very important rights have been violated. With regard to standing , Germany pursues a strict approach, insisting that only the person whose rights were violated can invoke the exclusionary rule. For example, the Federal Court of Justice ruled that a defendant cannot demand the exclusion of the incriminating statement of a witness who had not been informed of his privilege against self-incrimination when interrogated by the police.
Looking at our findings from a comparative standpoint, the rationales that different systems rely upon do not fall into an expected pattern. No clear divide exists between adversarial and inquisitorial systems. A trend we do identify, however, is that for most systems, particularly those that have adopted exclusionary rules relatively recently, the dominant rationales for exclusionary rules are to protect individual rights and promote judicial integrity rather than to deter misconduct or promote the search for truth.
This development can probably be attributed to the growing influence of international human rights law and to an emphasis on the rule of law in countries transitioning away from authoritarian regimes. Not surprisingly, we have not encountered a legal system that exactly mirrors one of the ideal types construed in section 3. To begin with, virtually all the countries we examined pursue more than one goal when excluding evidence, even if one objective may be dominant; and the majority of systems rely on a mix of rationales to support their exclusionary rules.
Of course, quite a few of our findings comport with the ideal-typical models. On the other hand, adopting the same rationale does not necessarily lead to identical doctrines of exclusion, as can be seen from the examples of Israel and Canada. Instead, one and the same rationale can justify a variety of approaches to exclusion, from balancing to categorical exclusion and from relatively narrow to relatively broad rules.
These variations can easily be explained by the fact that even legal systems which emphasize a single basic rationale for exclusion reasonably take other considerations and interests into account when shaping rules on individual issues. Certain overriding considerations appear to influence exclusionary decision-making to a larger extent than adherence to basic rationales.
For example, legal systems are most likely to use absolute exclusionary rules with respect to violations of certain fundamental rights, such as the right not to be subjected to torture.
When rationales coincide, and especially when the truth-seeking rationale weighs on the side of exclusion, legal systems are most likely to exclude evidence. Policy considerations can also be expected to have a great influence on the design of actual exclusionary rules. In sum, we can say that a strict doctrinal adherence to particular rationales and purposes of exclusion of evidence plays a lesser role in the construction and application of exclusionary rules when compared to considerations of fairness, procedural expediency, and an interest in keeping a balance between the truth-orientation and the rights-orientation of the criminal process.
The official purposes of excluding evidence are of course welcome arguments for supporting individual sub-rules and court decisions; but they are not determinative. Judges who shape and apply legal rules in difficult areas do not simply apply doctrines but take real life and basic notions of fairness into account. And that is probably how it should be. Greece is an example of such an absolutist approach to exclusion.
See Giannoulopoulos, , p. Macula, at 3; R v. Advocate JC 66, 83 Scot. See, e. Germany, case no. Elkins v. Basing a conviction on evidence that was obtained in an illegal manner or by means of a substantial violation of a protected human right allows the investigation authorities to enjoy the fruits of their misdeed and it may create an incentive for improper acts of interrogation in the future. Admitting such evidence may be seen as the court giving approval to the aforesaid illegality and being an accessory, albeit after the event, to the improper conduct of the investigation authorities.
Consequently, in certain circumstances admitting the evidence in court may prejudice the fairness and integrity of the judicial process. This rationale has been particularly influential in countries emerging from authoritarian regimes and transitioning to liberal democracy.
In those countries, the exclusionary rule has been valued for curtailing government abuse and for affirming that even government officials are subject to legal restraints. See Turner, See Slobogin, at — In Spano v. New York , US , , the U. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law. United States v. Leon , US , ; Hudson v. Michigan , US , ; Herring v. Though the rationale behind the exclusionary rule is based in constitutional rights, it is a court-created remedy and deterrent, not an independent constitutional right.
The purpose of the rule is to deter law enforcement officers from conducting searches or seizures in violation of the Fourth Amendment and to provide remedies to defendants whose rights have been infringed. Courts have also carved out several exceptions to the exclusionary rule where the costs of exclusion outweigh its deterrent or remedial benefits.
For example, the good-faith exception , below, does not trigger the rule because excluding the evidence would not deter police officers from violating the law in the future. Under the good-faith exception , evidence is not excluded if it is obtained by officers who reasonably rely on a search warrant that turns out to be invalid. See Arizona v. Also, in Davis v. Supreme Court ruled that the exclusionary rule does not apply when the police conduct a search in reliance on binding appellate precedent allowing the search.
Under Illinois v. Krull , evidence may be admissible if the officers rely on a statute that is later invalidated. In Herring v. Evidence initially obtained during an unlawful search or seizure may later be admissible if the evidence is later obtained through a constitutionally valid search or seizure. Murray v. Additionally, some courts recognize an "expanded" doctrine, in which a partially tainted warrant is upheld if, after excluding the tainted information that lead to its issuance, the remaining untainted information establishes probable cause sufficient to justify its issuance.
As with many rules of criminal procedure, the exclusionary rule has certain exceptions. Evidence obtained in violation of Miranda rights sometimes may be admitted at trial if an exception applies, assuming that the evidence is not inadmissible for another reason. However, sometimes state constitutions and state laws provide a broader range of rights than the U.
Depending on where you live, an exception to the exclusionary rule may not apply, or it may apply differently than in other states. One of the most important exceptions to the exclusionary rule is the exception for tangible evidence. If the police discover tangible evidence based on statements obtained in violation of Miranda, the prosecution may be able to use that evidence against the defendant at trial.
This is especially true if the prosecution can argue that the police would have found the tangible evidence eventually anyway. The exception for tangible evidence can be critical because evidence such as drugs or stolen items can prove a case against a defendant even if their statements are not admissible.
Some legal scholars have argued that the police have a real incentive to violate Miranda rules due to the value of obtaining this evidence. Some other exceptions relate to witness testimony.
Also, as with tangible evidence, a witness uncovered by a statement obtained in violation of Miranda rights may be used to testify against the defendant at trial.
The public safety exception can be more complex but just as critical. When a police officer reasonably believes that a situation is dangerous, they can interrogate a suspect about a weapon without issuing Miranda warnings. Any weapon that the police find as a result of this questioning may be introduced as evidence against the suspect if they are charged.
This can play a role in gun crime cases or in cases in which the use of a firearm is an aggravating factor that can lead to a higher level of charge or enhanced penalties. In some states, such as Florida, the presence of a firearm can result in a mandatory minimum sentence. Similarly, a statement that the police obtained in violation of Miranda may be admissible against the defendant in a sentencing hearing. If they confessed to having a weapon or to another aggravating factor without having received Miranda warnings, this may affect the penalty that they receive although not the initial determination of their guilt.
Last reviewed October Criminal Law Contents. Common Exceptions to the Exclusionary Rule One of the most important exceptions to the exclusionary rule is the exception for tangible evidence.
Tangible evidence Impeachment Witness discovery Public safety Sentencing.
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