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Comparative Analysis of Exclusionary Rules in the United States, England, France, Germany, and Italy

NCJ Number
Policing Volume: 22 Issue: 3 Dated: 1999 Pages: 280-303
Yue Ma
Lawrence F. Travis III
Date Published
24 pages
This article examines the historical development and the current status of exclusionary rules in the United States, England, France, Germany, and Italy, with attention to an analysis of the characteristics of the American exclusionary rule compared with the other countries.
In the United States the exclusionary rule was created by the judiciary with the intent of ensuring that police do not harm suspects and defendants by engaging in illegal tactics to obtain evidence against them. In England the exclusionary rule remains largely discretionary. Except in cases in which confessions are obtained illegally, the courts are not obligated to exclude evidence even in the face of police irregularity in evidence gathering. In using judicial discretion the courts balance the interest of the public and the interest of the accused. Commentators have noted that in the past decade or so there has been a trend in continental European countries -- including France, Germany, and Italy -- to tighten control over police and provide more safeguards for citizens. One measure taken to accomplish this goal is the expansive use of the exclusionary rule. Although European countries may boast of a longer history than the United States in suppressing illegally obtained evidence, the United States has the longest history of using the exclusionary rule as a means of deterring police illegality. England, France, Germany, and Italy are viewing such an exclusionary rule more favorably as police illegality appears to have a corrosive effect on justice procedures under regimes that do not have such a rule. Although the American experience has shown that the exclusionary rule may deter police illegality, its effect has been compromised by the body of confusing and obscure criminal procedural rules created by the U.S. Supreme Court in its post-Warren era decisions. 43 references and a list of 38 court cases