The United States: The Rise and Fall of the Constitutional Exclusionary Rule

Abstract

In the English common law, all evidence was admissible in court regardless of how it was gathered, perhaps with the exception of statements which were the product of torture or other cruel treatment. The United States, with its 1791 Bill of Rights, however, was the first country to recognize that evidence gathered in the violation of constitutional rights—such as the Fourth Amendment right to be free of unreasonable searches and seizures, or those conducted without a well-founded search warrant, and the Fifth Amendment privilege against self-incrimination—was inadmissible in court. This Chapter traces the evolution of U.S. constitutional exclusionary rules from the 1914 Weeks case and 1961 Mapp case, dealing with the Fourth Amendment and the 1967 Miranda decision dealing with the Fifth Amendment, up to its modern jurisprudence. The doctrines of “fruits of the poisonous tree”, referring to evidence (often physical) derived indirectly from constitutional violations, and its exceptions of “independent source” and “inevitable discovery”, along with an exception for “good faith” have been since adopted in many countries. The “fall” of the constitutional exclusionary rule, refers to recent doctrine, which is carving out more exceptions and is returning to the original common law position of presumed admissibility of evidence, and use of a “balancing” test which will only exclude evidence if the constitutional violations were intentional and egregious.