Exclusionary Rule Research Articles

Ammissibilità della prova e divieti probatori

Prova ‘ammissibile’ è tutto ciò che può essere legittimamente valutato in ordine a una proposizione da provare. Prova ‘inammissibile’ è quella che il giudice non ha il potere di assumere e, come tale, appartiene alla sfera del giuridicamente irrilevante. Occorre tenere ben distinte le questioni relative all’ammissibilità della prova da quelle relative all’efficacia probatoria, ossia alla persuasività. Analogamente non va confusa la prova come premessa probatoria, che esprime una mera potenzialità (la prova su x) con la prova come risultato (la prova di x), che indica un esito positivo. Con riguardo alle premesse probatorie, resta fondamentale la controversa distinzione tra prove dichiarative e prove critico-indiziarie. Parlando di prove «acquisite in violazione dei divieti stabiliti dalla legge», l’art. 192 c.p.p. è stato variamente interpretato: secondo alcuni, va riferito alle sole prove oggetto di un divieto probatorio, ossia inammissibili; secondo altri, anche alle prove ‘ottenute’ attraverso una qualsiasi violazione della legge (penale processuale o sostanziale o persino civile). Di recente è stata sollevata una questione di legittimità sul presupposto che le prove assunte in spregio dei diritti costituzionalmente tutelati non possano essere utilizzate, anche in assenza di un esplicito divieto probatorio. La Corte costituzionale ha, tuttavia, dichiarato inammissibile la questione con argomenti poco convincenti. Si è così persa la preziosa occasione per il definitivo chiarimento di un fondamentale interrogativo.

After Zigzagging Between Extremes, Finally Common Sense? Will Belgium Return to Reasonable Rules on Illegally Obtained Evidence?

In the absence of statutory rules on the matter, Belgian courts traditionally applied a strict exclusionary rule for illegally gathered evidence and its fruits. The Court of Cassation in 2003 made a spectacular U-turn and prohibited exclusion of illegally obtained evidence by criminal courts, with only very limited exceptions. Parliament subsequently incorporated these judge-made principles into a binding statutory rule. As a new Code is about to be debated in Parliament, the time is right to question the “normalisation” of law enforcement officers’ disrespect for the rules. The Rule of Law will be restored by making exclusion of illegally gathered evidence the rule, but exceptionally allowing its use upon consideration of the conflicting interests.

Interpreting change through legal culture: the case of the Irish exclusionary rule

AbstractThe changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

Restoring Causality to Attenuation: Establishing the Breadth of a Fourth Amendment Violation

When the police violate a suspect’s Fourth Amendment rights what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence should not be excluded when its discovery was not caused by the misconduct of the police. Yet, courts struggle with deciding the scope of a Fourth Amendment violation. The United States Supreme Court crafted the attenuation doctrine to assist in establishing the breadth of a Fourth Amendment violation. Attenuation simply stands for the proposition that not all evidence that is discovered subsequent to a Fourth Amendment violation is a consequence of that violation. Sometimes, the evidence results from an altogether different cause. If that is the case, the evidence is “attenuated” and the exclusionary rule should no longer be an issue. Yet, over time, the Supreme Court has whittled away the straightforward causal nature of attenuation and has substituted other policy-based tests to assess indirectly discovered evidence. This undermines the causal nature of attenuation and serves to diminish its utility by finders of fact. This article suggests that the time is right to restore causality to attenuation. By modifying the situations in which attenuation is used to evaluate the causal links between illegal police conduct and the discovery of incriminating evidence as well as by modifying the tests used to assess attenuation, we can once again make attenuation a useful causal concept. Policy will no doubt still drive decisions on what to do with evidence discovered in such circumstances. Attenuation, however, can best be used as a measure of causality as opposed to policy-based tests which seems to do little but confound and confuse.

Something Rots in Law Enforcement and It’s the Search Warrant: The Breonna Taylor Case

When police rammed the door of Breonna Taylor’s home and shot her six times in a hail of thirty-two bullets, they lacked legal justification for being there. The affidavit supporting the warrant was perjurious, stale, vague, and lacking in particularity. The killing of Breonna Taylor, however, is not just a story about the illegality of the warrant, it is also about the legality of the circumstances that facilitated her killing. Police officers lying to obtain warrants and magistrates rubber stamping facially defective warrants are the stories of individual failings. This article examines a weightier structural issue: how the Supreme Court fashioned legal doctrine that created the conditions that led to Breonna Taylor’s death. This article transcends the narrative of bad-apple cops. It is the first to present a structural framework for analyzing how Court rulings about the acquisition and execution of search warrants inequitably distribute premature death in marginalized communities. When the Court refused to apply the exclusionary rule to evidence obtained in violation of the knock-and-announce requirement, it incentivized police to ignore the rule. The result has been callousness in the execution of warrants and carelessness in their acquisition. When the Court gave police immunity for violating the rule, it sealed Breonna Taylor’s fate. Police refusal to knock and announce and to engage in a substantial waiting period before ramming the door is untenable in an age of increased Stand Your Ground Laws and unbridled gun ownership. The proper protocols for police home invasion demand SCOTUS review. The spectacle of Taylor’s killing, along with so many others, inflicted a cultural trauma on the public, particularly marginalized communities. The illegal warrant that set Taylor’s death in motion, therefore, demands a public vetting, preferably in an adversarial setting where one party does not monopolize both the facts and the narratives surrounding those facts. The repeated failure to hold police accountable for their killings will destroy the criminal justice system as we know it. The next Breonna Taylor is both foreseeable and preventable if that is what we elect to do.

The intersections of identity, belonging and drug use disorder: struggles of male youth in post-apartheid South Africa

ABSTRACT The exclusionary principles of the apartheid nation undermined black South Africans’ value and weakened their sense of belonging. The transition to post-apartheid was marked by the absence of supportive structures to nurture a sense of belonging let alone form an identity. Today, young people suffer ‘wounded attachments’ to the past and multiple exclusions from the future. Young people, in the absence of conducive conditions for fostering a sense of belonging, face a crisis of making sense of who they are in the 25+ year-old democracy. This article explores the intersections of identity, belonging and drug use disorder through the narratives of eleven male youth (20–30 years) at Soshanguve SANCA Rehabilitation Centre. Overall, drug use disorder is a manifestation of deep structural issues that influence belonging and identity formation; and it doubles as a way of renegotiating identity as young people strive to escape or belong to socio-relational groups around them.

Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand ,and the United States: The Importance of Compensation, Proportionality, and Non-Repetition

Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand ,and the United States: The Importance of Compensation, Proportionality, and Non-Repetition

Reasonable Fourth Amendment Exclusion

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that, even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was lawful. Judges and commentators sharply disagree about whether and which police mistakes of law are, in fact, reasonable so as to deny the application of the exclusionary rule remedy. They also disagree on the nature and scope of the reasonableness standard, and its impact on the very existence of the exclusionary rule as a remedy against police misconduct. This Article offers a new approach to the “good faith” exception doctrine based on a revisionist reading stemming from the Court’s recent decision in Heien v. North Carolina. There is widespread consensus that the good faith exception to the exclusionary rule doctrine determines the application of the remedy of evidence suppression to acknowledged violations of Fourth Amendment rights. But I argue that it is, in fact, better understood as an inquiry into the substance of Fourth Amendment rights and not into the application of the remedy. Since the Court held in Heien that a reasonable police mistake of law is relevant in the evaluation of conduct covered by the Fourth Amendment, there is no need for a “good faith” reasonableness exception to the exclusionary rule remedy, when that rule kicks in only after a violation of the Fourth Amendment. This approach renders the “good faith exception” to the exclusionary rule doctrine redundant. Instead of ruling that the exclusionary rule does or does not apply, courts in these cases can simply hold that an unreasonable search did or did not take place. This approach bears a significant practical payoff: courts will no longer be able to declare broadly that the police have violated the Fourth Amendment while in the same breath undercutting the value of remedying this violation based on two different questions on what constitutes one reasonable police officer.

Prosecuting Attorneys in a Democracy – A California Perspective

A prosecuting attorney in a democracy is very important in the processing of criminal cases- from pre-filing to final appeal. Much of the involvement of the District Attorney, both before a criminal case is filed, and during the prosecution of the case, stems from the “Exclusionary Rule”. It is the usual case that the police will bring their investigation, their arrest warrant or search warrant affidavit to a District Attorney to review it prior to taking it to the judge. In this connection, District Attorneys will themselves reject 5-10% of the warrant requests submitted to them for approval, often asking law enforcement to do some further investigation before resubmitting the warrant. Furthermore, because of the Doctrine of Separation of Powers, only the District Attorney or the California State Attorney General can make the decision to file or not file a case. This Article illustrates the impact of such discretion. The problem of democracy is strictly connected to the process of DA’s selection, what has also been here presented. Another fundamental issue is a role of DA in voir dire, mainly because jury trials are guaranteed by the federal Constitution and are associated with the idea of democracy. Separation of Powers and Judicial Control of the DA, the police, and the sentencing of those convicted of crimes have been analyzed from the perspective of the California law. Additionally, the article includes final comments on the technological progress and its impact on criminal law and democracy. All the conclusions have been made in reference to Author’s experience as Assistant DA in California.

Are Constitutional Rights Enough? An Empirical Assessment of Racial Bias in Police Stops

This Article seeks to empirically test the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops — such as that held by the Supreme Court in Whren v. United States — contributes to racial disparities in police officers’ decisions to initiate stops. To gain empirical traction on this question, we consider a natural experiment afforded by variations in constitutional law in the State of Washington. Following Whren, the Washington Supreme Court took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers. Thereafter, in December, 2012, the Washington Supreme Court reversed course and returned to a lax standard effectively equivalent to that of Whren. We investigate the effect of this latter change in the law — i.e., the 2012 retreat to a Whren-like standard — on the degree of racial disparities in traffic stops in Washington. For these purposes, we use a dataset of over 7 million traffic stops from 2010 to 2015 and employ a range of empirical techniques — including the estimation of difference-in-difference models and triple-differences models — that are designed to isolate the effect of the change in Washington constitutional law and account for both observable and unobservable factors that may also impact racial disparities in traffic stop rates. In particular, we employ a novel methodological approach designed to separate the effect of the change in constitutional standards in Washington from the effect of Washington’s contemporaneous legalization of recreational marijuana. Across our deep dive into these matters, we fail to find evidence that supports the conventional wisdom that Whren intensifies racial bias in officers’ decisions to initiate stops. On the contrary, our results suggest that constitutional standards, at best, have little to no impact on the gap between the stop rates of non-white and white drivers (or between black and white drivers). Racial disparities in traffic stops are an undeniable problem. And to best address this problem, we need to understand which legal tools do and do not work in regulating officer behavior. We suggest that the rejection of the conventional wisdom implied by our findings may be due to certain inherent weaknesses in the way in which the relevant constitutional standards are enforced — i.e., via the exclusionary rule. To the extent an officer’s decision to initiate a traffic stop is heavily driven by factors other than the remote possibility that any evidence obtained during a pretextual stop will be suppressed, it is unlikely that a constitutional-rights-based approach will meaningfully reduce racial disparities in traffic stop rates in practice. Instead, we propose several extra-constitutional approaches to this critical problem, including the use of administrative disciplinary systems that evaluate an officer’s aggregate pattern of behavior, not their behavior in individual cases — i.e., approaches designed to bolster a deterrent channel — along with the development of technologies that rely less on officer discretion in the first place.

A Tendency to Essentialism? Discourses about Women’s Leadership

The main objective of this research is to identify the women’s leadership model diffused through management literature in order to determine if there is a pre-eminence of essentialist and exclusionary principles in its sense. Through the Appraisal Theory and by analyzing a recent management literature sample, the values associated with the women’s leadership model are identified, and a conclusion about their essentialist character is reached. The initial hypothesis is that the women’s leadership model, disseminated to professional women through management literature, contains an essentialist character that reproduces gender dichotomies and the rational homo oeconomicus model by hindering gender equality and the development of egalitarian leadership models from being accomplished.

Emerging judicial autonomy and procedural due process in the PRC? An empirical study of China’s exclusionary rule

ABSTRACT Drawing upon a quantitative empirical analysis spanning ten years of judicial decisions, this paper assesses the implementation of an exclusionary rule in the People’s Republic of China (PRC). It tests the effectiveness of the relevant articles of the Chinese Criminal Procedure Amendment of 2012 (providing for exclusion of illegally obtained evidence). It considers 1,558 trial court decisions, appeals, and remands concerning the nascent exclusionary rule, compared to exclusion practices prior to the amendment’s enactment. It considers trends in use, types of cases, types of remedies afforded, and the basis for exclusion. The data disclose that the initial negative assumptions of many scholars and stakeholders were largely groundless, as this cause of action has become commonly used, resulting in significant numbers of retrials, reversals, and partial reversals. This paper also draws upon a literature search of Chinese law scholars to develop a set of rational categories for assessing early pessimism over the legislation’s viability. Principally, this consists of four core legal objections: exclusion conflicts with the PRC’s absence of rights against self-incrimination; lack of constitutionally mandated exclusionary protections; generic lack of judicial autonomy; and the lack of legal counsel. The empirical data offer a clear picture that these factors have failed to meaningfully impede the operation and functioning of the Chinese Criminal Procedure Amendment, and perhaps surprisingly, after more than six years, exclusion is now an intrinsic part of the PRC criminal justice landscape. This paper concludes that, despite reversals of liberal policies within political bodies of the PRC, what emerges in the judiciary is an otherwise counterintuitive growth of judicial autonomy, professionalism, and deference to procedural due process.

위법수집증거배제 법칙에 관한 미국 판례의 시사점

우리 형사소송법은 제308조의2에 위법수집증거배제 법칙을 명문화하고 있다. 대법원 판례도 2007년 제주지사 사건의 전원합의체 판결을 시작으로 비진술증거에 대한 ‘성질·형상 불변론’의 입장을 폐기하고 모든 종류의 증거에 대하여 위법수집증 거배제 법칙을 적용하고 있다. 다만 그 적용범위에 대하여 법률이 정한 절차를 완벽하게 준수하지 않은 수사기관의 모든 위법행위로 수집한 증거의 사용금지를 요구하는 것은 아니라는 점에는 학계와 판례가 동의하고 있다. 그러나 과연 그 적용범위를 어디까지 할 것인지 원칙과 예외의 기준에 대하여 지금까지 학계의 논의가 분분하고 대법원 판례가 제시하는 기준도 지나치게 포괄적이고 추상적이어서 실무에 명확한 지침을 제공하는데는 부족한 상황이다. 위법수집증거배제 법칙의 발원지이자 우리 형사소송법에 지대한 영향을 미친 미국의 경우 판례에서 그 예외를 폭넓게 인정하고 있고 다양한 이론을 발전시켜 이를 검토하는 것은 우리 판례의 추상적 기준을 보완하는데 큰 도움이 될 것으로 생각된다. 최근 미국 판례에서 예외가 인정되는 주된 요건은 수사기관이 선의로 한 행위로 고의 내지 중과실이 인정되지 않는 경우, 법령 위반의 위법성이 경미한 경우, 위법행위와 증거간 관련성이 떨어지는 경우 등으로 선의의 예외이론 또는 희석이론이 적용되고 있다. 위법수집증거배제 법칙의 적정한 운용방향은 위 법칙을 정립한 존재의의와 분리해서 생각할 수 없다. 위법수집증거배제 법칙은 적법절차 준수를 통한 국민의 기본권 보장과 실체진실주의를 조화하여 결국 모든 국민들이 인간답고 행복하게 살아갈 수 있는 정의사회 구현을 목표로 한다. 따라서 피고인의 권익 보장이라 는 미명하에 지나치게 적법절차 준수에 기울어지는 판단을 하여서는 안된다. 실질적인 적법절차의 준수는 피고인 뿐만 아니라 같은 국민인 피해자의 인권까지도 보장해야 하기 때문이다. 따라서 증거배제의 결론을 내릴 수사기관의 위법행위의 판단은 신중히 이루어져야 하고 미국의 예외이론을 참고할만하다. 따라서 위법수집증거배제 법칙의 적용여부를 판단함에 있어서 수사기관의 고의 내지 중과실이 있는지, 위법성 판단에 있어서 수사기관의 재량을 인정하는 것이 합리적인 범위내에 있거나 위반된 법령이 국민의 기본권 침해 등 측면에서 경한 것은 아닌지, 위법행위와 증거수집 간 관련성이 있는지를 중요한 고려요소로 제시하고자 한다.

The Exclusionary Rule Revisited

We revisit the economic theory of exclusionary rules. First, we show that more exclusion may induce enforcers to conduct more searches, contrary to the standard notion that more exclusion leads to fewer searches. Second, we identify and investigate the complexities that arise when enforcers may harass suspects (imposing significant costs without legal proceedings) instead of conducting legal searches. If one attempts to choose the optimal exclusionary rule naively (for example, by ignoring the possibility of harassment by enforcers), the chosen rule will exclude evidence more often than is optimal. We explore social welfare considerations and discuss policy implications based on our formal results.

Shame and ("managed") resentment: Emotion and entitlement among Israeli mothers living in poverty.

Of the range of negative emotional states, shame is commonly found to characterize experiences of people living in poverty. However, relatively little attention has been directed toward exploring other emotions that accompany the shame. Not exploring other emotions, the possibility that working-class mothers go through a struggling emotional experience in relation to their experiences of how authorities validate their belonging, is left out of scope. Exploring the notion of resentment creates a conceptual space for considering this possibility, as it flags the importance of belonging and entitlement for mothers living in poverty. I analyze these issues here, by applying "translocational positionality" which stresses how people take up positions relating to experiences of (non-) belonging and entitlement which are informed by struggles over inclusion and resources. As such, it stresses the links between struggles of belonging and struggles for securing access to resources. It affords the opportunity to identify the emotional/affectual dimension of struggles that would otherwise be implicit at best. A Resentment focused analysis of structured interviews conducted with 90 mothers, from seven ethno-national categories, living in poverty in Israel enabled me to analyze issues of belonging and entitlement as part of a continuous struggle for resources, pitched against welfare practices which ostensibly support mothers and families in need, but in fact apply means-tested and other exclusionary principles to leave mothers without the assistance that would protect them from shame.

The Status of Women in Leadership

The Status of Women in Leadership

La prueba ilícita ante la bifurcación del tribunal penal

<span lang="ES-CL">El artículo propone aproximarse a la prueba ilícita atendiendo al diseño institucional del sistema de justicia penal, a fin de mostrar problemas que de otra manera son ignorados. Utilizando las herramientas analíticas desarrolladas por la teoría racional de la prueba, se examinan las implicaciones de la bifurcación del tribunal penal en un tribunal de control de admisibilidad de las pruebas y un tribunal de juicio. Se emplea el proceso penal chileno como caso de estudio y se revisa críticamente el trasplante de excepciones a la regla de exclusión de prueba ilícita y la prohibición de valoración de prueba ilícita.</span>

The No Reflective Loss Principle in Marex v Sevilleja: One Step Forward, One Step Back

In Sevilleja v Marex Financial Ltd, a seven-member panel of the Supreme Court undertook a root-and-branch re-examination of the no reflective loss principle. While the Supreme Court's unanimous rejection of the unprincipled expansion of the rule to creditors represents a welcome development of the law, it was held by a bare four to three majority that a shareholder is not entitled to pursue a personal claim to recover loss flowing from the diminution in share value and a reduction in distributions which the claimant receives as a shareholder. This note questions the majority's claim that the no reflective loss principle is doctrinally rooted in the rule in Foss v Harbottle, explains why the policy considerations cited in support of the principle do not warrant a bright-line exclusionary rule, and argues that the majority's approach should - in the final analysis - be eschewed in favour of the minority's.

Exclusionary Rules of Evidence: Hearsay Rule and Its Exceptions in Nigeria

Exclusionary Rules of Evidence: Hearsay Rule and Its Exceptions in Nigeria

Empowering the Exclusionary Rule: Using suppression motion data to improve police searches and searches in the United States

The Exclusionary Rule (i.e. a U.S. Supreme Court created rule that bars evidence, obtained in violation of a defendant’s constitutional rights, from being used by the prosecution at trial) remains a highly controversial measure, with questionable ability to deter unreasonable searches and seizures. In fact, many decades since its enactment, allegations of unconstitutional stops, searches, and seizures continue to plague police departments across the United States. Examining these allegations is a critical step toward assessing police compliance with constitutional mandates and developing needed corrective measures. Content analyses of suppression motions (brought by criminal defendants to exclude incriminating evidence from trial based on allegations of unconstitutional police action) and hearings, conducted in an urban U.S. city, demonstrate how these data provide unique information from multiple perspectives (e.g. defense, prosecution, court, lay and police witnesses)—involving pretexual stops, defendant targeting, and over-reaching searches—that may be used to develop police training protocols, support early intervention systems, and improve local patterns of officer behavior. In this way, data generated by the Exclusionary Rule may not only empower the rule to achieve its intended purpose of enforcing constitutional protections in the United States, but also provide a framework of police accountability (by demonstrating the utility of court data) that may improve police searches and seizures in other countries.