Exclusionary Rule Research Articles

Defending Against the Military: The Posse Comitatus Act's Exclusionary Rule

On any given day, American military members engage in domestic law enforcement activities. Whether it’s patrolling the border, interdicting the flow of illegal drugs, monitoring internet file-sharing sites looking for potential child sex offenders, or representing the United States in federal court to enforce federal immigration laws, there has been a gradual encroachment by the military into civilian law enforcement matters. While these activities are often met with a presidential endorsement or a shrug of the shoulders by the American people, many of them are in fact a violation of federal law. The Posse Comitatus Act, passed by Congress at the end of Reconstruction, expressly prohibits the military from enforcing civilian laws. In practice, though, the Posse Comitatus Act is rarely, if ever, enforced. The judiciary is complicit in the weakening of the Posse Comitatus Act by both limiting what constitutes a violation of the Act and then refusing to apply the exclusionary rule to exclude any unlawfully obtained evidence when a violation does occur. Nonetheless, as the military increasingly encroaches into American society, the purpose and enforcement of the Posse Comitatus Act via the exclusionary rule needs to be reexamined; otherwise, there may be little legal protection against a gradual erosion into military control. This Article makes a relatively straightforward argument: the Constitution affords each American a right to be free from military control and that the Posse Comitatus Act is an effort by Congress to protect that constitutional right. As a statute designed to safeguard a constitutional right, there must be an effective enforcement mechanism. The most appropriate enforcement mechanism available for violations of the Posse Comitatus Act is the exclusionary rule, which would allow courts to suppress evidence obtained in violation of the Posse Comitatus Act in order to deter similar encroachment in the future. While seemingly straightforward, this argument is in fact novel. Courts and scholars have long struggled with the applicability of the exclusionary rule to the Posse Comitatus Act. Courts have been hesitant to place the Posse Comitatus Act in its true constitutional context and the growing trend is to apply the exclusionary rule only to the most egregious intentional Fourth and Fifth Amendment violations. This Article contributes to the discussion by grounding the Posse Comitatus Act in its constitutional context. By doing so, it supports the establishment of a Posse Comitatus Act exclusionary rule, built upon procedural due process, which serves to preserve the Posse Comitatus Act as an effective subconstitutional check protecting the right to be free from military control.

The Japanese Prosecutorial Justice and Its Limited Exclusionary Rule

The basic structure of the Japanese criminal justice system is modeled after the Continental criminal justice system emphasizing substantial justice and truth-finding. It often draws admiring attention from the West because of its lower crime rate and higher clearance rate. It is also viewed as “benevolent” due to the lenient disposition of trivial crimes (bizai shobun) by police, routine suspension of prosecution, suspended sentences and short sentences at trial Japanese police have been praised for the rarity of corruption and brutality and for the support and cooperation received from the public. This phenomenon is often explained as a result of the unique traditional Japanese legal culture which emphasizes respect to authority and reintegration into the community. Despite the praise from the West, however, this “heaven for a cop has recently been criticized from within the Japanese legal professional community because of its harsh institutional and cultural treatment of criminal suspects and defendants. A leading Japanese criminal law scholar has criticized Japanese criminal trials as “regrettable” because of the dominant role of investigators in the criminal process. A number of torture and physical violence cases have been revealed. Public trust in the Japanese criminal justice system has also been shaken by the disclosure of a number of highly-publicized retrial cases in which individuals, mistakenly convicted of murders and wrongly sentenced to death, were acquitted after decades on death row. As a result, fundamental reform of the system has been strongly recommended.

한국과 중국의 위법수집증거배제법칙에 관한 비교법적 검토

한국과 중국의 위법수집증거배제법칙에 관한 비교법적 검토

The GE and Formula One Cases

This article considers two recent judgments. The Supreme Court in the case of Formula One World Championship Limited held that the permanency of a fixed place through which a non-resident carries on business can be relative and depends on the nature of the business. In a decision involving the General Electric Group, the Delhi High Court opined on agency PE and the exclusionary rule on the ground of auxiliary and preparatory activities for fixed place PE.

한국과 중국 법원의 위법수집증거배제법칙 적용에 관한 비교법적 검토

한국과 중국 법원의 위법수집증거배제법칙 적용에 관한 비교법적 검토

China’s New Exclusionary Rule: An Introduction

As early as 1998, China’s Supreme People’s Court (“the SPC”) set forth in one of its Judicial Interpretations a rule reflecting the principle of the “exclusionary rule”: that illegally obtained evidence should be excluded from consideration in criminal trials.’ According to this Judicial Interpretation, oral evidence obtained by investigating personnel by torture, threat, false promise, fraud, and other illegal means cannot be used by a court as the basis for a criminal conviction. But over ten years of judicial practice have made it clear that this principle has not been effectively realized. In June 2010, the SPC, Supreme People’s Procuratorate (“the SPP”), Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly promulgated the Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases (“the Exclusionary Regulations”)’ and Regulations on the Examination and Evaluation of Evidence in Capital Cases (“the Capital Case Regulations”).’ The Exclusionary Regulations establish a system of rules for the exclusion of illegally obtained evidence; the Capital Case Regulations consist mainly of provisions addressing evidentiary rulings in death penalty cases, but several provisions address the exclusion of illegally obtained evidence in particular. The promulgation and implementation of these two documents (collectively, “the Evidence Regulations”), which have the legal force of SPC Judicial Interpretations,’ form a preliminary framework for the exclusionary rule in China.

Truth or Justice: A Comparative Look at the Exclusionary Rule in Germany and the United States

Procedural rules and case law play a key role in shaping the fact-finder’s ability to “find the truth” in both Germany and the United States. In the United States, in the absence of comprehensive codes of criminal procedure, the judiciary’s shifting interpretations affect the exclusionary rule’s scope forcing prosecutors to use the pre-trial process to determine “whether the logically relevant information [they have] gathered will successfully undergo the legal metamorphosis into technically competent evidence.” In both countries, the willingness of courts to impose those rules or to reshape the contours of past case law in a manner that may or may not exclude evidence shifts over time. At this moment in history, we are witnessing competing trends regarding the exclusion of evidence in Germany and in the United States. Although courts in the United States, in particular the Supreme Court, have recently been more willing to narrow the use of the exclusionary rule, the decisions of German courts are trending in favor of placing more safeguards on the legislature’s efforts to expand police powers. Many scholars have highlighted the differences in the scope and application of both country’s exclusionary rules. While I summarize this prior scholarship and key court decisions in Parts I and II of this article, in Part III, I explore how these different normative underpinnings fare in a world of rapid technological developments. Further, I probe how the differing legal conceptions of privacy, autonomy, and dignity mediate the relationship between the democratic state and the concept of the individual and ask whether the structure of evidentiary protections in both countries prepare us for the decades ahead.

The Underlying Reasons of Hardly Excluding Illegally Obtained Evidence in China

Although Chinese exclusionary rule reform made significant progress in technology, China does not fundamentally change the operating environment of exclusionary rule. With respect to the function of criminal court hearing, it is difficult for us to find ample scope for the exclusionary rule. On the one hand, the particular mutual coordination among investigators, procuratorates and courts in China, and the criminal procedure structure centered on the pretrial procedure basically determine that it is difficult for the defense party to completely overthrow the procuratorate's prosecution through applying for excluding illegally obtained evidence. Even if the defense party can occasionally impel the court to exclude illegally obtained evidence by forceful evidence, the defendant fails to change the result of being convicted. On the other hand, in the case of a formalistic court investigation and the phase separation between hearing and adjudicating, coupled with excessive emphasis on the truth of a case fact, the exclusionary rule with the high expectations of the whole society still exists in name only as before.

Torture and Exclusion of Evidence in China

Criminal justice has always been a focus of China’s legal reform, and a serious problem in China’s criminal justice system is police torture and coercive confessions. Almost all of the wrongful convictions that China has identified involve torture of some sort and involuntary confessions. To prevent wrongful convictions, China has implemented exclusionary rules against illegally obtained evidence since 2010, among other mechanisms. Part I of this article provides a historical overview of the problem of torture and anti-torture efforts in China. Part II traces the evolution of exclusionary rules in China and discusses various factors leading to their evolution. Part III evaluates the degree to which exclusionary rules have been implemented in practice based on empirical findings, and analyses the impact of such implementation on both judicial authorities and defence lawyers. Part IV introduces and comments on a series of legislative efforts to address difficulties in implementing the exclusionary rules, including the recently released implementing guideline. Part V puts forward some proposals for further reforms for stricter implementation of exclusionary rules.

Theatres of Procedure

This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner-city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national narrative of expanding freedoms even as it contributed to black incarceration.

Exclusionary Rules (Past, Present & Future)- A Comparative study between USA, England & Wales and India

Exclusionary Rules (Past, Present & Future)- A Comparative study between USA, England & Wales and India

'Importing' Restrictions from One Federal Rule of Evidence Provision to Another: The Limits of Legitimate Contextual Interpretation in the Age of Statutes

In 1975, the Federal Rules of Evidence took effect. The basic policy thrust of the Rules was to simplify and liberalize the law of Evidence in federal court. In particular, as the Supreme Court has acknowledged, Federal Rule 402 was intended to deprive the courts of the power to either enforce or enunciate uncodified exclusionary rules. Yet, as Part I of this article demonstrates, in several lines of authority federal courts have relied on contextual interpretation to impose evidentiary restrictions that have no grounding in statutory text. The common fact pattern in these lines of authority is the following: One provision of the Federal Rules contains a restriction, a second provision is silent on the restriction, and the text of neither provision manifests a legislative intent to import the restriction from the first provision into the second. The question naturally arises as to what are the legitimate uses and limits of contextual construction. As Part II explains, the enactment of the Federal Rules roughly coincided with the emergence of the textualist school of statutory interpretation. For formal and practical reasons, textualists assert the primacy of text and caution against uncritical reliance on extrinsic legislative history material. Unlike extrinsic material, legislative text has the formal status of law; and extrinsic history materials are vulnerable to distortion from the influence of special interest groups. The diminished importance of extrinsic history has enhanced the importance of contextual arguments, that is, arguments based on other provisions in the same legislative scheme. After all, like the text being construed, the contextual provisions have the formal force of law. The question of contextual interpretation is not limited to the setting of the Federal Rules of Evidence. More broadly, it affects the construction of all legislation in the Age of Statutes. Part II uses the Federal Rule as a microcosm for exploring the concept of contextual interpretation. On the one hand, Part II identifies several perfectly legitimate uses of contextual interpretation. To begin with, the wording of one provision may be used to eliminate an ambiguity in the wording of a second provision. By way of example, the court may look to the character evidence prohibition codified in Rules 404-45 to inform the meaning of “unfair prejudice” in Rule 403. Moreover, a blanket prohibition on the admission of a certain type of evidence in one provision may necessitate a narrowing construction of another provision that would otherwise permit the introduction of that very type of evidence. Hence, the prohibition of the introduction of evidence of nolo contendere pleas in Rule 410 can require a limiting construction of Rule 801(d)(2)(A) on statements or admissions of a party-opponent. However, when neither of those uses of context is in play, with one exception a court may not simply import a restriction from one provision of the Federal Rules into another. Doing so exceeds the interpretive power of context. Subpart II.B proposes that the importation is justifiable only in the exceptional situation in which the extrinsic legislative history contains an extraordinarily powerful showing of a broad legislative intent to bar the admission of a particular type of evidence, not a narrower intent to prescribe a restriction in one provision of the Federal Rules. Part III uses the standard proposed in subpart II.B to critically evaluate the three lines of authority discussed in Part I. Part III concludes that two of the three lines are flawed; one does not manifest the right type of intent, and the second relies on extrinsic history that is too mixed and conflicted to qualify as an extraordinarily powerful showing of intent. Only one line of authority is based on extrinsic history that includes compelling evidence of an intent to prevent the admission of a certain type of evidence under any theory. Hopefully, this article will not only prevent misreadings of the Federal Rules but also contribute to the larger debate over the proper role of contextual interpretation in the Age of Statutes.

Is the Exclusionary Rule a Prohibition-Era Relic?

Review of Wesley M. Oliver's The Prohibition Era and Policing: A Legacy of Misregulation.

Consequences of a Violation of Exclusionary Rules in China

Consequences of a Violation of Exclusionary Rules in China

Refugee Protection and State Security in Australia: Piecing Together Protective Regimes

This Article examines the disconformity between international refugee law and Australian migration law and practice, identifying the convoluted and overlapping set of substantive qualifications to refugee protection and complementary (human rights-based) protection under the Migration Act 1958. The Article, identifies, explains and analyses how exclusionary principles under domestic law extend well beyond the reach of international norms governing exclusion from refugee/complementary protection raising the spectre of refoulement.

Statistics on the Implementation of Exclusionary Rules in China

The media report that the rate of the actual implementation of exclusionary rules is very low in China, even lower than many of other countries in the world. This paper will start from Chinese academic findings on their current implementation. Further, it will proceed with Chinese official data on the actual implementation of exclusionary rules. Then, it will conclude with the common problems of such statistics that need to be mended in future reforms, in order to ensure better justice in China.

Admission of Extrinsic Evidence for Contract Interpretation: The International Arbitration Culture in Light of the Traditional Divisions

Abstract Mergers and acquisition (M&A) operations generally follow wide due-dil­igence and investigation works. This suggests that a lot of elements outside of the final contract could help the judge or arbitrator interpret the intent of the parties. Yet, the common law tradition usually includes a so-called ‘parol evidence rule’ (PER) that pro­hibits the use of such evidence to this end, among numerous exceptions. Other legal tradition such as the civil law don’t include such rule. As transnational M&A operations now generally use international commercial arbitration (ICA) as a way to solve potential disputes, parties can wonder if these extrinsic evidence can be used in an ICA context, given its multicultural legal habits. To answer this question, this article analyses the cultural roots that explain the existence or absence of the PER, and matches them with the specificities of ICA. There are two main explanations for the distinction between common law and civil law regarding the PER. One is substantial and regards the con­tractual interpretation approach. The second depends on the culture regarding evidence and the existence of exclusionary rules. These two explanations don’t survive in ICA. Moreover, the specificities of ICA tend to encourage the admission of extrinsic evidence in contractual interpretation.

The Exclusionary Rule of Illegal Obatianed Co-defendant Confession in China

The co-defendant refers to defendants that get involved in the same criminal procedure and the merger investigation, prosecution and trial, or any other defendants who share implicated relationship due to additional prosecution. In practice, there is a problem that whether the defendant can motion the exclusionary rule of the illegally obtained co-defendant confession. Even though the current exclusionary rule had positive improvement in these years, there are still blank areas, among which the problem doesn’t get a clear answer in the legislation. The question contains a preposed key point: how to define the character of co-defendant confession? Regarding that the part of the co-defendant confession about other co-defendants is often an important and unfavorable evidence against them, from the perspective of a fair trial, this confession should be regarded as witness testimony against other co-defendants. And it is necessary to give other defendants the right of cross-examination. For the purpose of deterring and curbing the state organs from illegal investigation in criminal proceedings, the accused should be fully given the qualification to motion the exclusionary rule within a reasonable range. Therefore, based on the intrinsic attribute of witness testimony in the co-defendant confession, the defendant should be entitled to the right to motion, if and only if the part of the co-defendant confession related to him is obtained by illegal torture.

중국 위법수집증거배제법칙의 입법 현황과 판례 고찰

중국 위법수집증거배제법칙의 입법 현황과 판례 고찰

Do Poor Citizens Benefit from Mega-Events? São Paulo’s Street Vendors and the 2014 FIFA World Cup

AbstractInternational mega-events inject millions of dollars into host countries’ economies, yet few studies assess which citizens benefit from events and which do not. Governments justify their bids for mega-events by arguing that infrastructure projects, event-related jobs, and tourist spending benefit many citizens. However, researchers find mixed impacts on host economies and the average citizen. Scholars and activists argue that a few businesses benefit while high prices and event-specific laws exclude poor citizens. Under what conditions do poor citizens benefit from mega-events? This article analyzes original interview, survey, and participant observation data on street vendors in São Paulo, Brazil during the 2014 FIFA World Cup. The project finds that most street vendors lost money, while a minority made record profits. Those who benefited from the event used brokers, bribes, and pockets of forbearance to circumvent FIFA’s exclusionary rules.