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NCJ Number: 94050 Find in a Library
Title: Comparative Analysis of the Exclusionary Rule and Its Alternatives
Journal: Tulane Law Review  Volume:57  Issue:3  Dated:(February 1983)  Pages:648-681
Author(s): B F Shanks
Date Published: 1983
Page Count: 34
Format: Article
Language: English
Country: United States of America
Annotation: This comment analyzes the development of the exclusionary rule in the United States and its perceived shortcomings, discusses the treatment of illegally obtained evidence in four foreign systems, and suggests modifications in the U.S. criminal justice system.
Abstract: Throughout most of its 68-year history, the exclusionary rule has served as a target of much legal wrath. Justifications advanced for the rule have been that it protects individual privacy and judicial integrity, deters police and other government officials from violating constitutional rights, and protects innocent persons. However, the public universally disdains the exclusionary rule, little empirical data exist to prove its deterrence value, and violations of constitutional rights usually occur in situations the rule is powerless to remedy, as when a person is innocent. Moreover, the rule is an all-or-nothing remedy in most circumstances, failing to distinguish between trivial and serious crime or between flagrant police violations and good faith errors. The author surveys rules of illegally obtained evidence in England and Canada, where jurisprudence provides that real or physical evidence seized in an illegal search is nevertheless admissible in court. Laws in the Federal Republic of Germany and the Soviet Union also are described. The discussion of alternatives to the exclusionary rule covers civil tort remedy, internal discipline within the police or government agency, criminal prosecution, and a criminal procedure ombudsman. The author concludes that neither the approaches used in foreign countries nor the alternatives discussed are all-inclusive remedies for the United States. He suggests admitting illegally obtained evidence if it is reliable and probative, handling procedural deviations through internal discipline, and limiting application of the rule to situations where violations of the defendant's rights are proportionately more detrimental to societal interests than the offense for which the defendant is being tried. The paper contains 161 footnotes.
Index Term(s): Canada; England; Exclusionary rule; Foreign judicial systems; Germany; Rules of evidence; Union of Soviet Socialist Republics (USSR); United States of America
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