Viktor Bérces: Evidence in Criminal Proceedings
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Chapter V. The Anglo-Saxon system of evidence today
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5.3. Characteristics of the US evidence system
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5.3.4. Prohibitions on evidence
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5.3.4.1. Grounds for excluding illegally obtained evidence

5.3.4.1. Grounds for excluding illegally obtained evidence

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The US literature classifies the grounds for excluding illegally obtained evidence into the following three categories:1

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  1. Under the “condonation rationale”, evidence obtained unlawfully must be excluded to ensure the independence of the court. According to this view, the court can preserve its impartiality in the eyes of the public by consistently distancing itself from the unlawful acts of the investigating authority, i.e. by automatically excluding from the proceedings evidence obtained unlawfully.2 I note that the Supreme Court laid the foundation for this view as early as Weeks v. United States (1914),3 when it held that the judicial “function must always be performed through the lens of the Constitution […] to allow prosecutors [to] clearly demonstrate that the courts are in open defiance of the prohibitions of the Constitution.”4 In later decisions, the Supreme Court derived the justification for this approach from “the imperative of the integrity of the judicial system”.5
  2. The “corrective justice rationale” approaches the question of the exclusion of illegally obtained evidence from the perspective of the victim of the infringement. According to this view, prohibitions are necessary to compensate for the resulting infringements, by which the person concerned is essentially restored to a state of affairs prior to the infringement.6 This rationale was first articulated by the Supreme Court in Herring v. United States (2009), which held that by excluding illegally obtained evidence, “the court restores the citizen and the State to the procedural position they would be in but for the violation of the Constitution.”7
  3. The “deterrence rationale” approaches this problem from the side of the investigating authority.8 The theory is based on the premise that investigative agencies should not be able to use unlawful means of detection despite a “lack of evidence”. It follows from this that the investigating court fulfils its constitutional obligation when it excludes evidence obtained unlawfully, which can also be seen as a specific case of sanctioning the police.9 This deterrent effect is felt not only by the authority in charge of the case, because of the redundancy of previous procedural acts, but also indirectly by all investigating authorities. The theory is that a parallel can therefore be drawn between the fear of punishment of the offender and the fear of a breach of the Constitution by the police.10
  4. The validity of this theory was confirmed by the Supreme Court’s decision in Mapp v. Ohio (1961),11 and in subsequent decisions has stated as a matter of principle that this theory is the only acceptable justification for prohibitions on evidence.12 “The only motive for excluding illegally obtained evidence is, in fact, to deter members of the investigating authorities from committing violations13 (and this is perfectly traceable in the case law).14
1 Steven Penney: Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under section 24(2) of the Charter. McGill Law Journal, 2004/1. 110. In Gácsi ibid. 28.
2 The state is in essence verifying itself by declaring that it does not intend to use its own unlawful conduct to its own advantage. In Penney ibid. 110–111. In Gácsi ibid. 29.
3 232 U.S. 383 (1914) In: Gácsi ibid. 29.
4 In other words, judges should not “get their hands dirty” by allowing the use of unconstitutionally obtained evidence. In Patrick B. McGuian: An Interview with Judge Robert H. Bork.
5 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) In: Gácsi ibid. 29.
6 To restore the status quo ante. Penney (2004) 111-113. In: Gácsi ibid. 30.
7 129 S. Ct. 695 (2009). In: Gácsi (2015) ibid. 30.
8 Cf. Herrmann (1997) 329–330. In Gácsi ibid. 30.
9 Lynch, Timothy: In Defence of the Exclusionary Rule. Cato Policy Analysis, no. 319, 1998. 1.
10 Dressler, Joshua – Michaels, Alan C.: Understanding Criminal Procedure, LexisNexis, 2010. 351.
11 367 U.S. 643 (1961) In: Gácsi ibid. 31.
12 L. United States v. Janis, 428 U.S. 433 (1976). In Gácsi ibid. 31.
13 However, this does not mean that all members of the Supreme Court fully share this view. As an example, in Herring v. United States [129 S.Ct. 695 (2009)], Justice Ginsburg stated, contrary to the majority’s view, that “one of the principal purposes of the exclusionary rule is deterrence, but it must be emphasized that it also serves other important purposes, […] such as dissociation and restorative justice.” In Gácsi ibid. 31.
14 László Kis: A jogellenesen beszerzett bizonyítási eszközök sorsa néhány külföldi állam és hazánk büntetőeljárásában. [The fate of illegally obtained evidence in the criminal proceedings of some foreign states and Hungary.] In Krisztián Szabó (ed.): Az új büntetőeljárási törvény első éve. [The first year of the new Criminal Procedure Act.] Debrecen Conferences IV, 2005. 59.
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