Excluding Evidence Illegally Obtained: American Idiosyncracy and Rational Response to Social Conditions
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02266.x |
| Date | 01 November 1966 |
| Published date | 01 November 1966 |
| Author | Louis B. Schwartz |
EXCLUDING EVIDENCE ILLEGALLY
OBTAINED
:
AMERICAN IDIOSYNCRACY
AND RATIONAL RESPONSB TO SOCIAL
CONDITIONS
TEE
American rule forbidding use of illegally obtained evidence
to secure criminal convictions has evoked reactions from British
penalists ranging from outright rejection to perplcxity
or
gentle
tolerance.’
It
has seemed anomalous that the criminal should go
unpunished because the policcman erred,
Far
better to convict
the manifestly guilty murderer
or
rapist and then turn onc’s
attention
to
the proper measures of discipline to be applied
to
the
policeman.
‘‘
Two wrongs don’t make
a
right
”
triumphantly
declare the more naive
of
my fellow-countrymen who dcplore the
rule
of
exclusion.
I
have not heard that supposedly conclusive
argument from Englishmen, but the general opinion here seems
to be that
it
is surely enough to give judges discretionary power to
exclude evidence when they are satisfied that
it
has
been unfnirly
or
oppressively obtained. Perhaps that does go far enough in
a
country where
it
can be said that
a
word
of
disapproval from
a
judge would assure
a
change of practice by the police.a American
police are not
so
malleable; they not infrequently pass adverse
public judgment
on
the judicial decisions which restrain them,
with more than
n
hint occasionally of
an
intention to persist in
methods which they regard
as
essential
to
their success. Although
I
have read reports indicating that English police too are human
and occasionally ignore not merely judicial admonitions but even
the criminal laws of their country, my purpose here is certainly
not to urge the transplanting of the American rule to England,
but rather to state the considerations which have led the Supreme
Court
of
the United States
to
put the admissibility of illegally
obtained evidence not only beyond the discretion of judges, but, to
a
considerable extent, beyond the discretion of the legislature to
change the governing
law,
With us
a
constitutional principle can-
not be set aside evcn by
a
majority vote of Congress
or
a
state
law-making body.
The essence of thb matter is that American experience has shown
the inefficacy of collateral disciplinary measures to secure police
observance
of
lawful limits
of
their investigative procedures. As
1
Qlanvillo William,
Criminal Law,
The
General
Part
(1001),
and
d.,
para.
12;
Cross,
Eoidence
(1063),
2nd
ed.,
266 ct seq.; of.
Dovlin,
The Criminul
Prosecution
in
England (1900),
p.
3&8,
6647.
,Rocont dcvolopments
of
the
Ameriaan
rule
have
been doecri!ed in Eartman, Admieeibility
of
Evidenae
Obtained b
Illegal
Search
and
Seizure under the
Amerimn
Conetitution
”
(1066) 28
dL.R.
208.
a
Cross,
op. cit., supra,
at
pp.
211-212.
685
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