Exclusionary Rules (Past, Present & Future)- A Comparative Study Between USA, England & Wales And India
The above statement signifies the irrefutable principle of fair trial. One of the devices invented for ensuring a fair trial are exclusionary rules for evidence. An exclusionary rule is a rule which governs the admissibility of evidence on the basis of it being procured unlawfully. It can be created by judicial precedent or legislating statutes depending on the importance attached to human rights by the respective country.
The purpose of this essay is to study the past, present and future of exclusionary rules of evidence in the USA, England & Wales and India using a comparative study. The above three countries have been chosen in order to study the appropriate approach to excluding evidence between the extreme positions of USA and India on the one hand and England & Wales on the other hand. The essay begins by retracing the historical development of the exclusionary rules to their present status in each of the above jurisdictions, with primary focus on rules related to illegal searches/seizures and illegal interception with respect to cellular technology. It then looks into the relevant literature on the effects of those exclusionary rules and whether they achieve the intended purpose. Finally, it assesses the need for these rules and whether there are other ways to deal with police illegalities and indiscipline.
A Brief History of Exclusionary Rules
England & Wales
One can therefore conclude that the exclusion of illegal evidence with respect to search/seizure and interception in United Kingdom is sporadic, whimsical and adheres to no set principles of exclusion. The only settled principle is the balancing test of prejudicial effect against probative value which provides wide discretion in the hands of trial judges.
Effect of Exclusionary Rules on Administration of Justice
- Effect on Police/Policing- The fundamental flaw here is that the exclusionary rule does not punish the police officer. Moreover, considering the fact that police performance is measured by the number of arrests made and not convictions, the police has an incentive to engage in aggressive policing even at the cost of individual rights. Also, a study found out that police officers' ability to assess the lawfulness of search is largely based on chance. There is also risk of police perjury as was pointed out in one study which showed that after the decision in Mapp v Ohio the number of arrests in narcotic cases where drugs were found on person decreased. But the number of cases where the officers claimed that drugs were found on the person`s hand or dropped on the ground increased. Since there was no particular reason why there was an increase in such cases, the authors concluded that it was the effect of the decision.
- Effect on Jurors- There are two ill effects of exclusionary rules on jurors - Juror error and Juror resistance. Juror error occurs when there could be a genuine absence of evidence which can lead to presumptions based on the bias of the juror such as over presumption of guilt in case of an innocent person or under the presumption of guilt in case of a guilty person. Both scenarios would lead to disastrous consequences as determined in a study.
- Judicial Bias- A study conducted by Professor James Spiotto concluded that 78% of all the motions to suppress were filed by those accused persons who had a prior criminal record. This leads to what Jacobi has termed as Adverse Selection where good participants are punished or denied their rightful benefit of doubt while bad participants are rewarded for their actions by completing absolving them of any incriminating evidence.
England & Wales
Alternatives if any are they reliable?
In the USA, the judicial precedents have suggested civil remedies or departmental inquiries to deal with illegal searches or illegal interception. Both the remedies lack the teeth needed to curb aggressive policing. Under civil remedies, 42 U.S.C. 1983 allows citizens to file tort claims for constitutional violations against illegal search & seizure and illegal interception as well.
The situation is relatively better with respect to illegal interception, as the courts have time and again upheld that unauthorised interception would be considered violative of a person's Fourth amendment rights and any evidence gathered therein inadmissible. The revelations of the unauthorised mass surveillance by the National Security Agency (NSA) hanged the entire landscape of privacy protection in the United States. The US and EU governments signed an umbrella agreement to preserve data integrity and prohibit further unauthorised intrusive surveillance. This resulted in various domestic changes in US law in terms of civil and criminal remedies.
England & Wales
One method of attempting accountability is to introduce a system of promotion in police forces where points would be added or deducted based on lawful or unlawful behaviour. If an arrest would give one point in the tally then illegal collection of evidence would deduct five points for such behaviour of an officer. This may initially lead to some amount of defensive policing in the short run but with proper training, such incidents can be curbed. In any case, any violation based on exigent circumstances would be constitutionally protected though it would depend on facts and circumstances of each individual case.
Is there even any need for these rules?
The answer to this lies in the words of Sir William Blackstone-
'It is better that ten guilty persons escape then one innocent suffer'
A legal right with no or ineffective remedy is of no consequence in law. It would be grossly inappropriate to leave the liberty of every common person at the mercy of a petty officer. Stating the immortal words of Justice Louis Brandeis of the US Supreme Court seems apt-
India has the most catching up to do, it must not only legislate the 94th and 277th Law Commission of India reports by setting up civil and criminal remedies for constitutional violations of citizens` rights by police but must also train them to perform effectively within the confines of law. The traditional approach of political comatose shouldn't be opted lest we want to risk an Indian Watergate or an NSA surveillance scandal.
All three jurisdiction have different ways of dealing with the dilemma of procedural illegality in evidence gathering. However, whether one deals with such impropriety as constitutional violations, principle of proportionality with balancing of rights or sparely addressing it the fundamental problem persists. The only ideal that can be firmly established is that rule of law and democracy can only be preserved when state officials are held to the same if not higher standards of behaviour.
There is no denying that there is some weight in the argument of the judiciary in refraining itself from reviewing police behaviour either under the principle of judicial restraint or separation of powers. However, if such a restricted interpretation is accepted then we need to also wave goodbye to the principles of Judicial Review, Judicial Activism, Public Interest Litigation because they also involve some form of interference by the judiciary in the interest of justice.
The practise of the Indian Judiciary to engage itself only at the highest levels and in rare occasions is an obsolete outlook. The law must function considering the vulnerability of an ordinary person and not expect every litigant to have the resources or opportunity to approach the highest court of the land. There is an impending need to introduce civil remedies and criminal remedies in police illegalities to uphold the spirit of democracy. As Lord Justice Heward said:
Nikunj Kulshreshtha is an advocate currently pursuing LLM in Criminal Justice from Queen Mary University of London.
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