The Rule Against Admitting Exculpatory Statements of Accused Persons: A Shiny Coin That has Lost its Currency

Abstract

As a general rule, accused persons on trial in Anglo–North American criminal legal systems are not allowed to introduce into evidence exculpatory statements they have made out of court. There is no coherent rationale for this rule, which is difficult to defend as a matter of principle and pragmatism. Yet this "anomalous" rule1 remains alive and well, at least in the U.S.A. and Canada, and invariably becomes the focus of pretrial or midtrial argument in those cases where such statements have been made. When an accused person fails to convince a trial judge to hear or receive evidence that he or she made exculpatory statements out of court, trial fairness is typically jeopardized. This article contends that at least three overarching principles of criminal justice—the inclusionary principle of evidence, trial fairness, and the presumption of innocence—require the rule itself to be abandoned. It should also be rejected as a matter of practicality.