NCJ Number
88705
Date Published
1981
Length
72 pages
Annotation
The admissibility of evidence obtained by illegal means is handled differently by different common law systems, as shown by the presence of the exclusionary rule in the United States and the use of an inclusionary approach in England.
Abstract
The United States courts represent one extreme by automatically excluding State evidence which is tainted with any kind of illegality. In contrast, England adheres to the view that all relevant evidence is generally admissible regardless of any illegality in the manner in which it was obtained. Canada's high court has used an approach similar to that of England, although the 1974 amendment of the criminal code provides for a modified exclusionary rule. The courts in Scotland have excluded evidence which is illegally obtained in most cases. Australia has expanded the operation of a discretionary rule and has moved towards the Scots-Irish model. The courts in New Zealand have shown a desire to remain flexible in weighing the relevance of evidence with interests of fairness and public policy. The rules in each country have developed in response to prevalent social conditions and the public attitude toward crime and the enforcement of criminal laws. The law reform commissions that have considered the problem of the admissibility of illegally obtained evidence in England, Canada, and Australia have uniformly rejected the extreme exclusionary and inclusionary rules in favor of a more flexible approach. Statutory reforms may well bring the rules in the various countries somewhat closer together in the future. Footnotes and a bibliography listing 65 sources are provided.