When Rights Become Empty Promises: Promoting an Exclusionary Rule that Vindicates Personal Rights

Posted: 7 Jan 2012 Last revised: 28 Mar 2012

Robert M. Bloom

Boston College Law School

Erin Macgowan

Boston College - Law School

Date Written: December 1, 2011

Abstract

The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante.

The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible.” In recent decades the U.S. exclusionary rule has become a weakened remedy for violations of the Constitution because exclusion has been made to depend on its deterrent effect, rather than on restoring parties to the status quo ante. An exclusionary rule based on deterrence theory suppresses evidence in order to discourage future illegal acts by government officials, rather than for the purpose of remedying a constitutional violation. This being so, when a court justifies the exclusionary rule on the basis of deterring such conduct, the application of the rule becomes limited to situations where exclusion will serve an explicitly deterrent purpose.

New Zealand and Canada have adopted judicial integrity as the underlying justification for their versions of the exclusionary rule. Judicial integrity in these jurisdictions is conceived to mean the ability of the judiciary to convict the accused, particularly of serious crimes, so that the public has greater faith in the judicial process. Relying on this principle judges are afforded more discretion and, in the end, entails the balancing of the seriousness of the offense with the seriousness of the violation.

Ireland justifies the exclusionary rule on the basis of vindication principle and excludes unconstitutionally seized evidence by way of expressly vindicating the personal rights of the accused. This justification for the exclusionary rule provides, it is submitted, the optimal level of protection against constitutional infractions.

Part I of this article details the history of the U.S. exclusionary rule and its deterioration as an effective remedy following the development, in the case law, of an emphasis based on deterrence as providing the underlying justification for exclusion. Part II examines Canada’s and New Zealand’s legislatively mandated exclusionary rules that employ balancing tests based on the principle of judicial integrity. Part III sets out the somewhat contentious history of Ireland’s exclusionary rule and the importance of the vindication principle in the construction of what is arguably a near absolute exclusionary rule. Finally, Part IV advocates that excluding evidence for the purpose of vindicating constitutional rights provides the most protective remedy for the violation of such rights.

Keywords: evidence, criminal law, criminal procedure, exclusionary rule, comparative law

Suggested Citation

Bloom, Robert M. and Macgowan, Erin, When Rights Become Empty Promises: Promoting an Exclusionary Rule that Vindicates Personal Rights (December 1, 2011). Irish Jurist, Vol. 46, pp. 38-73, 2011; Boston College Law School Legal Studies Research Paper No. 253. Available at SSRN: https://ssrn.com/abstract=1979702

Robert M. Bloom (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Erin Macgowan

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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