A Model Rule for Excluding Improperly or Unconstitutionally Obtained Evidence

Abstract

This article considers several different theoretical bases for exclusionary rules within domestic criminal justice systems, and many associated countervailing considerations against exclusion, in order to identify a principled basis upon which a model exclusionary rule could be built. The article then describes, from a broad comparative perspective, various application doctrines that form part of different existing exclusionary rules, and assesses how effectively each of these doctrines can be justified in terms of one or more of the accepted bases for exclusion. Finally, building on the theoretical and comparative study within the first two parts, the article concludes by proposing a principle-based model exclusionary test that could be adopted in almost any domestic jurisdiction, and explains how each of the previously discussed exclusionary doctrines either would or would not integrate into this proposed model exclusionary rule.

Keywords: exclusion, tainted, evidence, fourth amendment, search, comparative, international, dissociation, vindication, deterrence, deterrent, compensation, rights, breach