The Exclusion of Evidence and Comparative Criminal Law - Essay Example

? The Exclusion of Evidence Comparative Criminal Law Prof One of the most important principles in the criminal justice system is the reputation of the system. Nothing should be done that would put the administration of justice into disrepute. One of the key battlegrounds relating to this issue is the admission of evidence obtained in criminal investigations. Sometimes this evidence is excluded. In the words of The Police and Criminal Evidence Act 1984, section 78, evidence is excluded if “having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” This is similar to section 24(2) of the Canadian Charter of Rights and Freedoms. This is the way things should be. It is unacceptable for the police to contaminate evidence or obtain it through duress. However, its actual exclusion should rest at the discretion of a judge. This is the correct law and is followed in many common law jurisdictions, while it is less prevalent in civil law jurisdictions. In the course of this essay the rationale for this rule will be examined as will a number of cases and statutes relating to it. It is first important to discuss context. Crime has been an unfortunate aspect of human existence from the beginning of time. Each civilization and country has had to determine a method for dealing with it within their own moral vision. Different approaches to dealing with crime come from different values systems. Everyone is different and believes in different things. For people that believe a criminal is a product of his environment and is not personally responsible for committing of crime, it is likely that resources will be used on rehabilitation and treatment. Imprisonment will play a less important role. But for those who believe individuals are responsible for the things that they do and that if they intend to commit crimes they should be punished, the emphasis is likely to be on punishing or detaining the criminal. These different values play a role in determining how evidence is excluded. These two ways of dealing with crime can be broken up into two models. One will be likely to exclude contaminated evidence in order to preserve the human rights of the criminal, the second model would be much less likely to exclude evidence1. The first is the famous due process model present in most developed countries. The main idea of this model is that an individual should not be deprived of their human rights, even if it is clear that he or she has committed a terrible crime. To put someone in prison is to take away the criminal’s right to liberty. That is a very serious thing. The process must be scrutinized to ensure that everything is done by the book. At its heart the due process model is the idea that the system would rather see ten guilty people go free than one innocent person in prison. The result of this model is many hours of painstaking work checking evidence and a long time-line of the court case moving slowly through the system. Because, historically, the legal system railroaded individuals by planting false evidence and by abusing human rights, we must be very careful when examining evidence. Permitting contaminated evidence into the legal system would encourage law enforcement officers to commit illicit acts. The due process model would strongly argue to exclude evidence obtained in the course of an abuse of human rights. The second way of looking at criminal justice regarding evidence is the crime control model. This model puts a high value on locking up guilty people. Its aim is to protect society and it tries to do this by detaining as many people as it can as quickly as it can. Typically, in this model more money is spent on policing and deterring and prosecuting criminals as quickly as possible so that the police and prosecutors can start again quickly on the next group of criminals. If it happens that an innocent person is caught this mechanized process, that will not to be celebrated by law enforcement, but it will be seen as the cost of an effective system. This model believes there is a reason someone was arrested. It trusts the police to do their job honourably and effectively. Evidence of criminal activity is proof no matter how it was obtained. Furthermore, here the notion of individual responsibility is more significant. People are responsible for their behaviour: they will be removed from society if they violate society's laws. Criminals can complain that they are not actually responsible for their crimes because they came from a bad home or had a defective gene, but under this model society will have none of it. It sees criminal behaviour as an intentional choice and demands that criminals take individual responsibility for it. It is willing to overlook how evidence was obtained. The main object is to protect society. In the United Kingdom, the common law has evolved over the years. One of the early leading cases involving the exclusion of evidence is Kuruma v. The Queen, where it was found that the only criteria to take into account was relevance. According to Lord Goddard, who wrote that decision, “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.”2 The law evolved from that point as judges focused more on the weight between prejudicial and probative value assigned to evidence. Some evidence may jeopardize an accused's right to a fair trial, while other evidence might throw the question of guilt or innocence into sharp relief. One of the hallmarks of the common law system was the discretion permitted to a judge to decide whether to include evidence based on this balancing act. In R. v. Sang we can see the law had moved on from Kuruma to some extent. In Sang, the judge wrote: “Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as the result of the activities of an agent provocateur.”3 Admissions could be tossed out, but not other forms of evidence. The legislature eventually stepped in after a number of cases involving bad evidence. Section 78 of The Police and Criminal Evidence Act 1984, requires unfairly obtained evidence to be thrown out. The legislature required that judges examine a number of factors when determining whether or not to throw out (any) unfairly obtained evidence. This was a sensible move and one that was sorely needed in the UK. In 2000, in P & Ors, R. [2000] UKHL 69, the Court ruled that just because a suspect’s human rights were violated, that did not mean that the evidence would automatically be disqualified. This again was the right decision. Generally speaking, such evidence should be frowned upon, but it must be up to the trial judge to determine the weight between prejudicial and probative value. This is part of the reason why the common law system is better than the civil law system. The truth is that the process is a delicate one. As two practising British lawyers put it in a recent article: “Disclosure of evidence, exclusion of evidence and abuse of process are three areas of procedure that interlock and in practice are often considered together. Fine judgements must sometimes be made as to whether an apparent breach of the rules will lead to a disclosure argument, an exclusion argument, an abuse argument, or sometimes a mixture of all three”4. The real world is a complex place where a hard and fast rule off proves to be inequitable. The point of judges and courts is to administer justice correctly. This will require them to take into account of the full context, all of the facts of the situation. There are a number of useful cases in Canada that bear scrutiny. Unlike the UK, Canada has a constitutionally protected set of human rights known as the Charter of Rights and Freedoms5. A number of sections of this document are relevant to the issue of exclusion of evidence. To begin with s. 7 guarantees security of the person (i.e. individuals cannot be locked up except in accordance with the principles of fundamental justice). Section 11(d) presumes that a person is innocent until proven guilty. Perhaps most important is section 24. Section 24(1) says that anyone whose rights have been abridged or violated can apply to a court for a remedy to make up for their damages. More importantly, 24(2) says: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Whether or not the administration of justice will be brought into disrepute is an issue for a court to determine. It is done, according to the recent Supreme Court case R. v. Grant, by balancing a number of factors. These factors are very important as they represent the values of the society that has promulgated the Charter and still wants to lock up criminals. It is not an easy issue to determine by any means. As one commentator recently put it: It is commonly posited that there exists an inherent tension between protecting individual rights in the face of furthering the public good. Such tensions become evident when the public good demands the truth of a crime, but where that truth was obtained in violation of Charter rights. Recognizing the paramountcy of constitutionally guaranteed rights, U.S. jurisprudence has developed an absolute protection for infringements of certain rights, including the right to silence and the right to counsel. This blanket protection, however, fails to realize the potentially far more important societal concerns that may be involved in any one case. As a result, the Canadian approach to the exclusion of evidence obtained in conjunction with a Charter infringement has been one of balancing the various societal interests to achieve a just result.6 The issues to be examined in Canada by the courts are not dissimilar to those under the UK Police Act: they are, essentially, the severity of the breach and its affect on the administration of justice and how justice is perceived. In the United States, the exclusion of evidence is a significant topic of discussion, in particular in the post-war period when it was found that the Fourth Amendment to the U.S. Constitution did not permit the police to collect evidence in violation of this amendment or the Fifth. The reason for this line of thinking comes perhaps from America's Revolutionary past, the idea of British soldiers breaking down doors. The Courts did not want examples of the police breaking into peoples' homes in order to collect evidence to become common. Protections against self-incrimination are also important in the United States. The key case that established this was Boyd v United States. A balancing test is usually done in order to determine whether the tainted evidence should be admitted at trial. There have been recent efforts however to abolish the exclusionary rule in the United States in response to a perceived rise in violent crime. In 1995, the House attempted to pass the Exclusionary Rule Reform Act. The Act created a statutory good faith exception to the Exclusionary Rule in addition to expanding the exception to certain federal searches without a warrant. In March 1995, the Senate introduced its own Violent Crime Control and Law Enforcement Improvement Act of 1995 which sought to eliminate the rule entirely and establish in its place, a civil tort remedy against the United States for use by those whose Fourth Amendment rights had been violated. By doing so it sought to solve one of the principal inadequacies of constitutional tort doctrine, the judgement-proof police officer. Neither bill was passed by the other House.7 Even stronger prohibitions on tainted evidence appear in civil law jurisdictions such as Italy and Spain. There, an absolute prohibition exists on the use of such evidence. There does not appear to be a balancing act amongst a variety of factors, nor does judicial discretion appear to enter the picture. In Germany, evidence such as the suspect's diary is not permissible to include.8 These rather extreme prohibitions are counter to common law systems where judicial discretion is prized. The advantage that the common law prizes over the civil law system is flexibility. Sadly, for the public in these civil law jurisdictions it is harder for judges to find just results when dealing with such rigid rules. No one will deny that it is positive for evidence obtained involving the abuse of human rights be excluded, but likewise no one wants a situation where a mass murderer is freed because of a mistake made by the police. We require our judicial system to be sturdier than that and to take into account the nature and severity of the breach. It is more necessary today than ever before to have a system which permits judges to discard evidence that is considered to have been obtained unfairly or under duress. Part of the reason must surely lie in the fact that the very nature of evidence has changed in our modern world. It is not what it once was. The truth is that DNA has dramatically changed how criminal investigations are conducted today. It has revolutionized the system and created a number of thorny problems. One of these problems is how potentially irrefutable such evidence may appear to a judge or jury. The more credulity that is put in a piece of evidence, the more it is open to potential abuse. It is important for law-makers to remember this. An over reliance on DNA, although tempting, is certainly unappealing from the Due Process Model perspective. In a system where everyone is owed a long, full trial with lots of contextual issues entered in as evidence, relying too much on a single piece of evidence can have negative consequences. However, people who prefer the Crime Control Mode of criminal justice, which is much stricter, view DNA testing as a magic bullet as it frequently provides irrefutable evidence against criminals. It is not hard to imagine it potentially being open to abuse. That is why judge's most be on guard against such evidence that has been obtained incorrectly.            There is a great deal of controversy about this issue. It still disputed whether or not it is appropriate to obtain peoples’ DNA samples without a warrant or without the consent of individual in question. Future ethicists in some sense will have to wrestle with this question. The truth is that sometimes police officers obtain DNA samples without the accused's knowledge. In the United States, it has been accepted that there is no expectation of privacy when taking someone’s biological data. There are a number of judges who believe the Fourth Amendment to the U.S. Constitution does not prohibit the warrantless search and seizure of garbage. The question for them becomes why should it prohibit collecting a tissue with someone’s DNA on it if they left it behind? Opponents of this idea say that "most people have no idea that they risk surrendering their genetic identity to the police by, for instance, failing to destroy a used coffee cup. Moreover, even if they do realize it, there is no way to avoid abandoning one’s DNA in public"9. This is an important point: especially with considering the issue of exclusion of evidence. Few can doubt that it is vital that the public have confidence in their judicial system. This is a lodestone in each common law jurisdiction. Anything that might bring the administration of justice into disrepute is to be avoided. So it is with the exclusion of contaminated evidence. Evidence that has been obtained using torture or abuse is not to be admitted in a courtroom, except at the discretion of a judge. This has two main effects. One is that it provides a major disincentive for police officers to behave in a manner that might jeopardize the evidence they seek to collect, thereby encouraging them operate within the legal framework. The second effect is to uphold the principle of innocence until proven guilty. The state has a burden to prove beyond a reasonable doubt that an accused has committed a crime. In the UK this is the golden thread that runs through the common law system. In Canada it is codified in the Charter of Rights and Freedoms. It is a vital principle. The truth is that we need well qualified judges who are permitted the flexibility to balance between the societal needs for justice to be done and the rights of the accused. Letting a mass murderer off the hook because a rogue policeman punched him once in the cheek during a scuffle is not an acceptable result. Nor is it an acceptable result for the police to fabricate evidence or to torture a suspect in order to extract a confession. Citizens demand that law enforcement agents act within legal frameworks and preferably without trickery. These are things that judges in the common law systems must take into account. Few could doubt that the exclusion of evidence obtained through the abuse of human rights marks a society or polity as being developed and sophisticated. We can only hope that this principle is expanded through all legal jurisdictions around the world. In order to achieve a more just world, we must work together to ensure that evidence obtained through the abuse of human rights should in a general sense be excluded from trial. We should not, however, lose sight of the strengths of the common law system which permits judicial flexibility. We live in a fast changing world and judge’s must be allowed to use their discretion in difficult situations. Works consulted Beaudoin,  G.-A and E. Ratushny, The Canadian Charter of Rights and Freedoms 2nd ed., Carswell, Toronto, 1989. Friedman, Lawrence M. American Law in the Twentieth Century. New Haven: Yale University Press, 2002. Harmon, Amy.  “Lawyers fight DNA samples gained on the sly.” New York Times. 2008, April 3. http://www.nytimes.com/2008/04/03/science/03dna.html?_r=1 Ma, Yue. "Comparative analysis of exclusionary rules in the United States, England, France, Germany, and Italy", Policing: An International Journal of Police Strategies & Management, 1999 Vol. 22 Iss: 3, pp.280 - 303 Mappes, Thomas A, and Jane S Zembaty. Social Ethics: Morality and Social Policy. 7th ed. New York: McGraw Hill, 2007. Osborn, Debra. Suppressing the Truth: Judicial Exclusion of Illegally Obtained Evidence in the United States, Canada, England and Australia. Murdoch University Electronic Journal of Law. December 2000 Volume 7, Number 4 Radcliffe, Benjy. “R. v. Grant: A Work in Progress.” The Court Blog. December 16th, 2009. http://www.thecourt.ca/2009/12/16/r-v-grant-a-work-in-progress/ Rahman, Aziz, and Jonathan Lennon. “The Exclusion of Unlawfully Obtained Evidence.” Insidetime. August 2007 http://www.insidetime.org/articleview.asp?a=83&c=the_exclusion_of_unlawfully_obtained_evidence Cases and statutes Boyd v. United States, 116 U.S. 616 (1886) Kuruma v. The Queen [1955] A.C. 197 R. v. Grant, 2009 SCC 32 R. v Sang [1979] UKHL 3 P & Ors, R. [2000] UKHL 69 (24 May 2000); [2002] 1 AC 146 The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) The Constitution Act, 1982 (Schedule B of the Canada Act 1982 (UK)) [Includes the Canadian Charter of Rights and Freedoms] Read More