Journal of Criminal Law and CriminologyVolume 52Issue 3 September-October Article 5

Fall 1961

The Exclusionary Rule Under Foreign LawG. Arthur Martin

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Recommended CitationG. Arthur Martin, The Exclusionary Rule Under Foreign Law, 52 J. Crim. L. Criminology & Police Sci. 271 (1961)

THE EXCLUSIONARY RULE UNDER FOREIGN LAW

A. Canada

G. ARTHUR MARTIN*

In Canada, the general rule is that evidenceotherwise admissible is not rendered inadmissibleby the fact that it was illegally obtained. Thisstatement is, however, subject to the rules re-specting the admissibility of confessions. Articlesseized under an illegal search warrant or obtained

,by a trespass are admissible,1 and evidence ob-tained by an illegal search of the person is alsoadmissible.

In Kuruma v. The Queen, Lord Goddard, speak-ing for the Judicial Committeeof the Privy Council,said:

"In their Lordships' opinion the test to beapplied in considering whether evidence isadmissible is whether it is relevant to the mattersin issue. If it is, it is admissible and the courtis not concerned with how the evidence wasobtained."1

In A.G. of Quebec v. Begin,3 the accused wasconvicted of motor manslaughter. Section 285(4d) of the Code (now sec. 224 (3)) provided that,on charges of driving a motor vehicle while intoxi-cated or while impaired by alcohol or a drug, theresult of a chemical analysis of the blood, urine,breath or other bodily substance of a person maybe admitted in evidence on the issue of whetherthat person was intoxicated or under the influenceof a narcotic drug or whether his ability to drivewas impaired by alcohol or a drug, notwithstand-ing that he was not, before he gave the sample,warned that he need not give the sample or thatthe results of the sample might be used in evidence.No warning was given to the accused, and it wasargued that since the charge was not one of thosereferred to in the section, but one of manslaughter,a warning was required to render the result of theanalysis of the accused's blood admissible. TheSupreme Court held that no warning was neces-

* Member of the Bars of British Columbia and On-tario with offices in Toronto. Additional biographicaldata may be found in 51 J. CRim. L., C. & P.S. 161(1960).-EDrTOP.

I R. v. Lee Hai, 64 Can. C.C. 49 (1935); R. v. Honan,20 Can. C.C. 10 (1912); R. v. Doyle, 12 O.R. 347(1886).

2[1955] 2 W.L.R. 223, 226-27.' 112 Can. C.C. 209 (1955).

sary. The accused had in fact consented to thegiving of the blood sample; the court stated,however, that the evidence of the analysis wouldhave been admissible even if the sample had beentaken without his consent, although section 285(4e) (now sec. 224(4)) provided that no personwas required to give such a sample.

In a subsequent case4 the court dearly limitedthe confession rule to self-criminating statementsand held that it did not embrace "the incriminatingconditions of the body, features, fingerprints,clothing, or behaviour of the accused, that persons,other than himself, observe or detect and ulti-mately report as witnesses in judicial pro-ceedings." 5

In Kuruma v. The Queen, the Judicial Committeeof the Privy Council indicated that the court hada discretion to exclude evidence which had beenobtained by improper means if its admission wouldoperate unfairly against the accused. Lord God-dard, speaking for the Judicial Committee of thePrivy Council, said:

"No doubt in a criminal case the judge alwayshas a discretion to disallow evidence if the strictrules of admissibility would operate unfairlyagainst an.accused. This was emphasized in thecase before this Board of Noor Mohamed v. TheKing, [19491 A.C. 182, and in the recent casein the House of Lords, Harris v. Director ofPublic Prosecutions, [19521 A.C. 694. If, forinstance, some admission of some piece of paper,e.g. a document, had been obtained from a de-fendant by a trick, no doubt the judge mightproperly rule it out."' 6

It is to be noted that the principle laid down inNoor Mohamed v. The King and Harris v. Director

'Reference under the Constitutional Questions Actre section 92(4) of The Vehicles Act, 1957 (Sask.) c. 93,121 Can. C.C. 321 (1958).

6 Per Fauteux, J., id. at 331. Cf. R. v. Barker, [1941]2 K.B. 381, 28 C.A.R. 52, where the English Court ofCriminal Appeal held that books and records producedby the accused to government investigators under apromise of immunity from prosecution stood on thesame footing as any oral or written confession.

6[1955] 2 W.L.R. 223, 227.7 [1949] A.C. 182.

GLANVILLE L. WILLIAMS

of Public Prosecutions" was an entirely differentone, namely, that the trial judge has a discretionto exclude evidence of trifling weight having regardto the purpose for which it is professedly offeredif its admission would unfairly prejudice the pris-oner. The suggestion in the case of Kuruma v. TheQueen that a court may in the exercise of its dis-cretion exclude evidence of physical things dis-covered by unfair means is somewhat novel andruns counter to the long line of authorities holdingthat facts discovered as a result of a confessionobtained by improper means are admissible.9

Indeed it was recently held in Ontario that asmuch of an illegally obtained confession as isconfirmed by facts discovered as a result of theconfession may be admitted. 10 It is true that Lord

8[1952] A.C. 694.9 R. v. Warickshall, 1 Leach 263 (1783); R. v. Gould,

9 C. & P. 364 (1840); R. v. White, 15 Can. C.C. 30(1908).

10 R. v. St. Lawrence, 93 Can. C.C. 376 (1949).

Goddard did not purport to be dealing withmaterial things obtained by illegal seizure, butinstead with things obtained by a trick; still, it isdifficult to see why the same principle should notapply in both cases.

If the courts consider that they have a discre-tion to exclude illegally obtained evidence, theydo not appear to have exercised that discretion infavour of the accused. The problem of deliberateviolation of the rights of the citizen by the policein their efforts to obtain evidence has not been aspressing in Canada as in some other countries.In the absece of constitutional restrictions, thepowers of the police can be enlarged by legislationwhen required to cope with some particularlyserious problem of law enforcement. In addition,the remedy in tort has proved reasonably effective;Canadian juries are quick to resent illegal activityon the part of the police and to express that re-sentment by a proportionate judgment for dam-ages.

ngland

GLANVILLE L. WILLIAMS*

THE ENGLISH VIEw: REJECrION

OF THE EXCLUSIONARY Rury,

Under the prevailing English rule, the factthat evidence is obtained through a trespass orother illegal search or seizure does not exclude itfrom evidence. This rule was accepted during thenineteenth century in two cases of a somewhatlow order of authority. In Derrington,l the prisonergave a letter to the turnkey, who promised to postit, but who instead gave it to the prosecutor. Theletter was received in evidence. In Jones v. Owens,'2

a constable illegally searched the defendant andfound twenty-five young salmon in his pocket;it was held that the evidence was admissible on acharge of illegal fishing. Mellor, J., said: "I thinkit would be a dangerous obstacle to the adminis-tration of justice if we were to hold, because evi-dence was obtained by illegal means, it could notbe used against a party charged with an offence."

The issue lay dormant in the criminal courts

* Reader in English Law in the University of Cam-bridge and a Fellow of Jesus College, Cambridge. Addi-tional biographical data may be found in 51 J. CaLm.L., C. & P.S. 166 (1960).-EDrrOR.

12 C.&P. 418, 172 E.R. 189 (1826).2 34 J.P. 759 (1870).

until it was revived before the Pivy Council inKuruma in 1955.3 The defendant had been con-victed of being in unlawful possession of am-munition, evidence having been given by policeofficers that they had searched him and found theammuinition on him. It was alleged for the defencethat this search was unlawful. The Privy Councilrefused to allow an appeal against conviction,holding that even if the search was illegal, theevidence obtained by it did not become inadmis-sible. The judgment was delivered by Lord God-dard, C. J., who laid it down that the test to beapplied in considering whether evidence is admis-sible is whether it is relevant to matters in issue.If it is, it is admissible, and the court is not con-cerned with how the evidence was obtained. How-ever, the learned Chief Justice qualified this bysaying: "No doubt in a criminal case the judgealways has a discretion to disallow evidence if thestrict rules of admissibility would operate unfairlyagainst the accused.... If, for instance, someadmission of some piece of evidence, e.g. a docu-ment, had been obtained from a defendant by atrick, no doubt the judge might properly rule it

3 [1955] A.C. 197.

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THE EXCLUSIONARY RULE

out." It is not easy to see why evidence obtainedby trickery should be ruled out, when evidenceobtained by unlawful force is not; the latter wouldseem to be a more flagrant breach of the law thanthe former.

Lord Goddard went on to say: "It should bestated that the rule with regard to the admissionof confessions [i.e., the rule excluding inducedconfessions], whether it be regarded as an excep-tion to the general rule [i.e., the rule that relevantevidence is admissible] or not, is a rule of law whichtheir Lordships are not qualifying in any degreewhatsoever." This statement is satisfactory asfar as it goes, -but one would like to know thereason for not applying the general rule of ad-missibility to the special case of induced confes-sions. There must be some reason why an inducedconfession is excluded, though relevant, whileevidence obtained by an illegal search is admitted.Some consideration other than that of relevancymust create this distinction. It would have beenmore satisfactory if we had been told what theconsideration is. In the absence of an explanation,one does not know whether English law is fun-damentally consistent with itself. For example,one possible reason for excluding induced con-fessions is that this is necessary in order to holdthe police and prosecution to proper behaviour.But this reason would equally suggest the exclusionof evidence obtained by an illegal search.

There are other grounds for dissatisfaction withthe decision in Kuruma. The American decisionswhich hold the contrary were not properly con-sidered, and their basis was .quite possibly mis-understood. Similarly the Scottish decisions, whichare also to the contrary, were misinterpreted andmisstated.' Since decisions of the Privy Council

are not absolutely binding in future cases, evenupon the Privy Council itself, this importantquestion of public policy cannot be regarded asfinally settled.

There are a few civil cases bearing on the issue.In Calcrafl v. Guest,5 the defendant came intoposssession of certain of the plaintiff's documentswhich the defendant could not produce in evidencebecause they were privileged. The defendant

4 See the powerful criticism of Kuruma by Prof.Franck in 33 CA. B. REv. 721, and subsequent corre-spondence in id. at 984, 1111. See also CowEN &CARTER, EssAYs ON TRE LAw OF EvrwENcF c. 2 (Oxford1956).

s [1898] 1 Q.B. 759 (C.A.). CompareLloydv. Mostyn,10 M. & W. 478, 152 E.R. 558 (1842).

returned the documents to the plaintiff, but notbefore he had made copies of them. It was heldthat the defendant could give secondary evidenceof the contents of the documents. The court as-sumed that the way in which the defendant gothis evidence was of no interest to justice, and itseems to have assumed that the evidence wouldhave been admissible even if it had been stolenfrom theother side. The decision is anextraordinaryone, for there can be little point in conferringprivilege upon original documents if pirated copiesof them are admissible.

In Lord Ashburlon v. Pape,6 a way was found toavoid this consequence. Pape was a bankrupt,whose discharge was opposed by the plaintiff. Pape,by a trick, obtained privileged letters written bythe plaintiff to his solicitor. Pape had these letterscopied and proposed to use them in the bank-ruptcy proceedings as secondary evidence of theircontents. The plaintiff sought an injunctionagainst Pape to restrain him from disclosing theletters or their copies. The injunction was granted.This outcome is satisfactory; however, it is vexa-tious to require separate proceedings to be broughtin such circumstances, particularly against anundischarged bankrupt who will be unable tocontribute to the costs. If a court of equity willenjoin the use of such documents, it would seemto follow under the Judicature Act that the viewof equity should prevail in all courts; separateproceedings should not be required to give effectto it.

Yet even if this is so, there are difficulties inapplying the rule in Lord Ashburton v. Pape tocriminal proceedings. If the defendant to a crimi-nal charge appealed to equity to suppress illegallyobtained documentary evidence of his guilt, equitywould quite possibly refuse to assist him. In anycase, the rule in Lord Ashburton v. Pape can applyonly. to documentary evidence the use of whichwould be a breach of what may be called the ac-cused's equitable copyright; the rule would notsuppress evidence concerning other types of in-criminating articles.

RuLEs OF O=R COMMON LAW JURISDiCriONS

Other common law jurisdictions have almostinvariably followed the traditional view andadmitted evidence illegally obtained. Canada, asindicated by Mr. Martin in the preceding article,

6 [1913] 2 Ch. 469 (C.A.).

GLANVILLE L. WILLIAMS

follows this approach. Another example is Ceylon.-Irish courts seem to have undergone a change

of attitude. In an 1887 case, evidence was admittedalthough illegally obtained, but in 1955 a judgerefused to admit evidence of fingerprints that hadbeen taken with the consent of the accused whenhe was in custody on a different charge, since hehad not been told of his right to refuse consent.9

The Scottish courts recognise that there are twoimportant interests that are liable to come intoconflict, (a) the interest of the citizen to be pro-tected from illegal invasions of his liberty by theauthorities, and (b) the interest of the state toensure that evidence bearing upon the commissionof crime and necessary to enable justice to be doneshall not be withheld from courts of law on anymerely formal or technical ground. Neither ofthese objects, said Lord Justice-General Cooperin Lawrie v. Muir,10 can be insisted upon to theuttermost, and the judge has a discretion to admitor exclude the evidence. "Irregularities requireto be excused, and infringements of the formalitiesof the law are not lightly to be condoned." Onequestion to ask is whether the departure fromstrict procedure has been adopted deliberatelyand by way of trick. Another is whether Parliamenthas prescribed a special procedure, departure fromwhich is likely to be regarded as fatal.

The facts of Lawrie v. Muir were that the keeperof a dairy was convicted of violating a statutoryorder by selling her milk in bottles belonging toother persons. The evidence against her consistedof testimony by two inspectors of a limited com-pany formed for the purpose of restoring milkbottles to their rightful owners. The inspectorshad no right to enter the defendant's premises,because she had not contracted with the MilkMarketing Board; it was only the Board's con-tracts that gave the inspectors a right *of entry.However, the defendant permitted the inspectors,who produced their warrants, to make a full in-spection. It was held by a Full Bench of the HighCourt of Justiciary that the inspectors, thoughacting in good faith, had illegally entered thepremises by misrepresentation, and that theirevidence was inadmissible; a conviction wasaccordingly quashed. The reason why the court.exercised its discretion to rule out the evidence

7 Rajapakse v. Fernando, 52 N.R.L. 361 (1951); see[1955] Clm. L. REv. 328.

8 Dillon v. O'Brien, L. R. Ir. 300, 16 Cox C. C. 245(1887).

People v. Lawlor, [1955-6] Ir. Jur. Rep. 38, 21J. Crim. L. (Eng.) 263 (1957).

10 [1950] Just. Cas. 19.

was that the inspectors had only narrow powers,the limits of which they ought to know. Thedecision is all the more striking to an Englishlawyer because he would not regard the inspectors'entry, made with the defendant's consent, aswrongful. The misrepresentation as to the rightto enter would not vitiate the consent in Englishlaw. However, it is an intelligible view that theentry, though not tortious, was sufficiently wrong-ful to exclude the evidence that came to light as aresult of it.

In a later case, Fairley v. Fishmongers of Lon-don,n the inspector's departure from the strictprocedure was a very narrow one. He was author-ised to search for evidence relating to the contra-vention of food regulations and of an order dealingwith salmon, but not concerning the SalmonFisheries Act, under which the prosecution wastaken. In the circumstances the court allowed theevidence to be given.

In TurnbuW' a search was made upon the de-fendant's premises under warrant, but documentswere taken which were not within the scope of thewarrant. Lord Guthrie refused to admit thedocuments in evidence, because in the circum-stances a contrary ruling would tend not only tonullify the protection afforded to a citizen by therequirement of a magistrate's warrant," but also tooffer a positive inducement to the authorities toproceed by irregular methods. Lord Guthriepointed out that there were no circumstances ofurgency at the time of the seizure; nor were thedocuments taken plainly incriminating on theirface. In Kuruma, Lord Goddard referred to thisruling with apparent approval;13 but he did notexplain why evidence obtained by trespass toproperty is more objectionable, or more unfair tothe accused, than evidence obtained by an assaultupon the person.

Perhaps the most important of these Scottishcases is McGovern.4 Here the police illegally tookscrapings from the fingernails of a person who wasat the police station under suspicion. Since thisaction was taken without his consent, it amounted,to an assault. The court excluded the evidence ofthe scrapings. Lord Justice-General Cooper againlaid down the principle upon which the Scottishcourts act: "Irregularities of this kind always needto be 'excused' or condoned, if they can be excused

1 [1951] Just. Cas. 14.12 [1951] Just. Cas. 96.13 [1955] A.C. 197, 204.14 [1950] Just. Cas. 33.

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THE EXCLUSIONARY RULE

or condoned, whether by the existence of urgency,the relative triviality of the irregularity, or othercircumstances. This is not a case where I feeldisposed to. 'excuse' the conduct of the police."This important decision was directly in point onthe facts of Kuruma, because it involved a tres-pass to the person; it was not cited, however, inthe judgment in Kuruma, which is misleading onthe Scottish doctrine.

The latest in the series of Scottish cases isMarsh v. Johnston,15 where policemen boughtliquor out of hours in order to obtain evidence ofan illegal sale. It was held that their evidence was

admissible. The purchase, although technically anoffence by the police themselves, was not a wrongas to the defendants.

.15 [1959] CfaM. L. REv. 444 (H.C. of Justiciary).

C. France

ROBERT VOUIN*

In French criminal law, the fundamental ruleconcerning the burden of proof is the principle ofpresumption of innocence: it rests with the pros-ecution to present the proof, and any accusedperson is deemed innocent as long as his culpabilityhas not been proved by the prosecution.

The second rule, concerning the administrationof the proof, is what we call the principle of thedeep-seated conviction. As the instruction usedfor the jury of the Assize Court says:

"The law does not call upon the jurymen toaccount for the means through which they letthemselves be persuaded, it does not lay downrules upon which they must particularly makethe completeness and adequacy of a proof de-pend; it prescribes to them to interrogate them-selves in silence and meditation, and to tryto find,in the sincerity of their own conscience, whatimpression was made on their reason by theproofs reported against the accused and themeans of his defence. This is the only questionstated by the law, a question which enclosesthe whole measure of their duties: Do you havea deep-seated c',nviction?"'Two consequences proceed from this principle

of the deep-seated conviction. On the one hand,with certain exceptions stated by law, the proofmay be made by any means. But on the otherhand any proof, with certain exceptions, is depend-ent upon the judge's deep-seated conviction. Allproofs can be received in France in a criminal trial,because any proof appreciated by the judge accord-ing to his deep-seated conviction is never conclu-sive in itself. So it is, for example, that the admis-

* Professor of Law, Faculty of Law, University ofParis. Additional biographical data may be found in 51J. Cmu. L., C. & P.S. 169 (1960).-EUrroR.I CODE OF PENAL PROcEDuRE, art. 353.

sibility of hearsay evidence can be explained, thisevidence which is so disgraceful in the eyes of thecommon law jurist.

Another rule, however, restricts the ability toprove by any means. Proofs are admissible in thecriminal trial only if they have been legally securedand legally adduced. If the French law acceptsall modes of proofs, it emphasizes, nevertheless,the way to proceed to get the proof, with theresult that any proof illegally obtained must bedismissed from the judiciary proceedings. Theprinciple of the legality of the proof should becomprehended not in view of the nature of theproof, but of the means used to obtain it. Theproof must be legal, in France, in the sense thatthe judge can build his deep-seated convictiononly on proofs obtained and introduced accordingto the law.

It is from this principle that the rules proceedconcerning house searches, illegal seizures, andconfessions obtained through illegal means orfollowing an illegal search.

The invalidity of a house-search made withouta search warrant from a judge does not annul thesentence which has followed, if the judgement ofsentence makes it explicit that the illegal house-search has not been taken into account.2 However,a sentence must be annuled if it has been deliv-ered exclusively on the basis of an official reportwhich is null and void for having resultedfrom an illegal house search.3

It is clear though that a search carried outwithout a warrant is legal if it is carried out withthe consent of the master of the house. In this case,as a matter of fact, there is no violation of the

2 Cass. Crim., Bull. Crim. No. 394 (1924).3Cass. Crim., Rec. de Dr. Penal 231 (1948).

19611

ROBERT VOUIN

privacy of a person's house. The principle of theinviolacy of a person's house, described by art. 76,still in force, of the constitution of 22 FrimaireVIIth year, must be then considered as respected.

But the concerned person's consent can validatethe search carried out without a warrant only ifthe consent is given "with full knowledge of thefacts, that is to say with the knowledge that theproceeding is illegal." The consent can validatethe search only if it is given by a person whoknows he has a right to refuse the search. TheSupreme Court of Appeal rescinds all sentencesbased upon searches carried out without a war-rant, if the sentences do, not include the acknow-ledgement of a consent given "with full knowledgeof the facts."4

The man on the street, the average Frenchman,is not always fully aware of the exact measure ofhis rights, and if he is guilty is apt to confess hisculpability as the result of a search, even if thesearch is illegal.

The invalidity of a search does not necessarilylead to the invalidity of a procedure started orcarried on thereafter. 5 The judge, as a generalrule,must estimate the probative value of the prelimi-nary investigation writs which will have followed.But what about a -confession resulting from anillegal procedure?

In 1935, in the Boutros case, the "ChambreCriminelle" quashed a verdict of not guilty, judg-ing that the nullity of search or seizure procedures"did not forbid the judge to take into considerationall the factors of the proof independently of illegaldeeds; and particularly the accused's later confes-sions, if they could be regarded as made withoutrestraint, could not be considered as non-existent,on the sole ground they had followed an illegalhouse search.

' 6

However, in 1953, in the Isnard case, the samejurisdiction quashed a verdict of conviction for thereason that the "proceeding concerning Isnard...reported altogether his arrest, his search and hisstatements; that the operations the police hadcarried out made a whole; that the confessionsthe judges of the Court of Appeal took into accountcould have been valid only if they had been madefreely; that in the case in point, it was not so,

ICass. Crim., Rec. Dalloz 1924.1.174 (1923); id.,Rec. Dalloz 1936.1.46 (1936); id. Rec. Dalloz 1954.110(1953).

1 Cass. Crim., Rec. Sirey 1937.1.73, note L. Hugue-ney (1936).

6 Cass. Crim., Rec. Dalloz 1936.1.20, not minin.(1935).

considering the circumstances in which they hadbeen obtained."

'7

These two judgments dealt with the sameproblem; the second one was careful to equate the"search of a person" with a house-search. Butthough one quashed a verdict of conviction andthe other a verdict of not guilty, there is no con-tradiction between them. The Boutros judgmenthad laid upon the judges the obligation to findwhether the confession consequent upon the illegalhouse-search might still have been free, and con-sequently admittable as proof. The Isnard judge-ment only added the affirmation of the right ofsupervision that the Supreme Court of Appealgrants itself upon the judges' official investigations,and from which it would procceed that a confessionresulting from an illegal search might or mightnot have been free.

It may happen that confessions obtained bytrickery or guile cannot be accepted in the prelimi-nary judicial inquiry. The Supreme Court of Appealdeclares, in the same way, that confessions whichhave been illegally obtained cannot be used asproofs.

In 1888, the examining magistrate in charge ofthe Wilson case ventured to call on the phone aperson whom he suspected of complicity, passinghimself off as another person also suspected. Thismagistrate was censured by the Supreme Court ofthe Magistrature on January 31, 1888.8

In 1949 in the Imbert case, a police superintend-ent arranged a telephone conversation betweentwo suspected persons and overheard it fromanother receiver. The sentence later pronouncedwas quashed by the "Chambre Criminelle" of theSupreme Court of Appeal on the ground that thepolice officer's intervention "had as an aim and aresult to elude the legal dispositions and the generalrules of procedure that the examining magistrateor his delegate should not fail to recognize withoutjeopardizing the rights of the Defence." Thisjudgment is very important, because it states thatthe violation of the rights of the defence, evenoutside any violation of a written law, may leadto the annulment of the procedureY

A short time later, another police superinten-

7 Cass. Crim., Rec. Dalloz 1953.533, note Lapp(1953); cf., Vouin, Illegally Obtained Evidence, INTL.CRIM. POLICE REV. 241 (No. 91 1955).

8 Rec. Sirey 1889.1.242; cf., Rousselet, REV. D. SCI-ENCE CRIMINELLE 50 (1946).

9Cass. Crim., Sem. Jurid. 1952.11.7241, note J.Brouchot (1952); cf., Vouin, CRrm. L. REV. 10 (1955).

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THE EXCLUSIONARY RULE

dent, in the Jolivol case," in order to identify theguilty person, had a recorder plugged into thereceiver of the telephone of a couple who had com-plained of being insulted regularly over the tele-phone. The "Chambre Civile" of the SupremeCourt of Appeal decided that the plaintiffs civilrights were violated by the installing of this re-corder set, with the couple's consent, to detect thetelephone call.

This decision has not been approved by every-body and is questionable law. But it dearly

10 Cass. Civ., Gaz. Palais 1955.1.249 (2d sec. 1955).

demonstrates the will of the Supreme Court ofAppeal to disapprove, in the civil as well as penallaw, police methods which might allow some per-sons to come upon confessions dishonestly.

As a conclusion, it is well established in theFrench penal law, without reference to the con-stitutional law or public liberties, that the convic-tion of a suspected or accused person cannot bebased upon an illegal proof, because any proofillegally or irregularly obtained must be dismissedfrom the proceedings in court.

This solution guarantees the rights of the defenceand the protection of all citizens.

D. Germany

WALTER R. CLEMENS*

In the German law of procedure, the "rule offree evaluation of evidence" as laid down in section261 of the Code of Criminal Procedure (hereinaftercalled CCP) prevails. This provision reads: "TheCourt shall evaluate the evidence according toits unlimited estimation and with due regard tothe general course of the trial." Section 261 isdosely related to Section 244(ii), CCP, whichreads: "The Court shall ex officio expand thetaking of the evidence to all facts and evidencerelevant to the exploration of the truth." Suchevidence includes that which has been obtainedby the police.

Hence the principle of free evaluation of evidencepermits the judge, and binds him at the same time,freely to weigh the evidence without any ties tostrict rules. Thus, for instance, he may not besatisfied with the sworn statements of one or morepolice officers and instead credit the conflictingstatement of the defendant. He may, on the otherhand, disbelieve the defendant's confession if hehas reasonable grounds to assume the defendantmade it only to protect another person. He mayalso refrain from using evidence which appearsdubious for other reasons, or which was obtainedin a dubious way.

To some extent, however, the judge's right toan unlimited evaluation of evidence is curtailedby the law. In certain cases it prohibits the judge,expressly or by interpretation, from using certain

Head Officer, Ministry of Justice, State of Ham-burg, Germany. Additional biographical data may befound in 51 J. CRat. L., C. & P.S. 172 (1960).-ErrOR.

evidence, especially evidence obtained in violationof legal commands or bans. But in the vastmajority of cases the use of such evidence isadmissible in principle.

Although it is the primary objective of thisreport to discuss the exclusion of illegally seizedphysical evidence, it appears advisable to extendthe discussion to evidence other than physical,since only thus can the German system of theexclusionary rule be dearly represented.

ILLEGALLY OBTAINED EVIDENCE THE USE

OF WHICH IS PROHIBITED

(1) The most unambiguous prohibition againstthe use of illegally obtained evidence is laid down inSection 136a, CCP.' It prohibits certain immoralmethods of interrogation and says that statementsof the defendant obtained in violation of thisprovision shall not be used in evidence, regardlessof his consent.

(2) Section 69(iii), CCP, provides that Section136a, CCP, is applicable to the hearing of wit-nesses. Therefore, the judge is prohibited from us-ing a witness's testimony obtained in violationof Section 136a, CCP.

(3) Section 252, CCP, says: "The statement of awitness heard prior to the trial who only in courttakes advantage of his right to refuse to giveevidence, shall not be read out." This provision

1 Regarding the text of this provision and furtherdetails, see Clemens, Police Interrogation Privileges andLimitations (Germany), 52 J. CRIM. L., C. & P.S. 59(1961).

WALTER R. CLEMENS

has been extensively interpreted by the courts andlaw professors to go far beyond its wording. It isregarded as a far-reaching ban on the use of evi-dence. The extent of this ban is a matter ofargument.

Following the generally accepted opinion of thecourts2 and law teachers, 3 Section 252, which is

considered to be supplementary to the provisions ofthe CCP regarding the privilege of the witness torefuse his testimony, prohibits the judge from usingstatements made by such witnesses as have takenadvantage of their privilege only subsequent totheir interrogation.

The privilege of silence is granted by the CCPto the near relations of the defendant;4 to certainpersons who are under an obligation of secrecy,e.g., parsons, defense counsel, lawyers, doctors,members of the Bundestag and the Landtage,editors, etc., and their assistants (with the restric-tion that they have no right to refuse their testi-mony if they were already released from theirobligation of secrecy);5 and to every witness inregard to all questions an answer to which wouldexpose him or his near relations to the danger ofa criminal prosecution.'

Further, Section 252 bans the use of a statementmade by a witness who, contrary to a commandof the CCP, was not advised on his privilege ofsilence prior to his interrogation. This is generallyaccepted as far as regards the command to advisethe near relations of the defendant.7 There iscontroversy, however, with respect to the commandto advise witnesses who by making a statementexpose themselves or near relations to the risk of acriminal prosecution. While the Federal SupremeCourt denies a ban on the use of a statementtaken in violation of this command, prominent lawtheorists9 are right in affirming such ban.

2 2 Entscheidungen des Bundesgerichtshofs in Straf-sachen 105 (Decisions of the Federal Supreme Court inCriminal Matters); 7 id. 195.

'KLEINKNECHT-M1'LLER, KOMMENTAR ZUR STRAF-PROZESSORDlNUNG (Commentary on the CCP) §48, pre-liminary note 2e I (4th ed.); EBERHARD SCHMIDT, LEHR-KOMMENTAR ZUR STRAFPROZESSORDNUNG (InstructionalCommentary of Criminal Procedure) pt. II, §252, n.1(1957).

CCP, §52, para. (i).'CCP, §§52, 53(a).5 CCP, §55, para. (i).7 See, e.g., KLEINKNECHT-i,LLER, op. cit. supra note

3, at §52, n.3f.8 1 Entscheidungen des Bundesgerichtshofs in Straf-

sachen 40 (Decisions of the Federal Supreme Court inCriminal Matters).

9KLRINKNECHT-MNlLLcR, op. cit. supra note 3, at§55, n.4; EBERHARD SCHMIDT, op. cit. supra note 3, at§55, n.9.

Finally, Section 252, which speaks only of thecase of a genuine privilege of silence, is deemedapplicable in cases where the CCP affords a protec-tion which is rooted in such privilege. Section 81c,CCP, provides that persons other than the de-fendant may refuse a bodily examination or thetaking of a blood test for the same reasons as theymay refuse their testimony. According to therelevant court decisions0 and law teachers" theresult of such examination or blood test as wasmade in spite of a refusal shall not be used inevidence, in analogous application of Section 252,because "the duty to tolerate the bodily examina-tion or the blood test is kind of an extended dutyto give evidence."" Section 95, CCP, provides thateverybody (with the exception of the defendant)who has in his custody objects which may be ofimportance as evidence or are subject to confisca-tion is under the obligation to produce and sur-render them by request, but that the action whichis provided by law for the enforcement of suchobligation shall not be taken against persons whohave the privilege of silence. The question iswhether any objects which were obtained throughthe illegal use of force against a person thus privi-leged can be used in evidence. An explicit regula-tion to this effect is missing in the German law.Whether a ban on the use can be derived from thefact that the banning provision of Section 95,CCP, is in close connection with the provisions ofSections 52, 53, and 55, CCP, 3 should be answered

in' the affirmative. 4 Section 97 provides thatwritten communications between the defendantand certain persons who are under the privilegeof silence, or written material which is in thepossession of such privileged persons, is not sub-ject to impounding, unless these persons aresuspected of being parties in the crime, accessoriesafter the fact, or receivers. In the event that suchdocuments are impounded contrary to the banof Section 97, CCP, it is commonly held" that

0 1 Entscheidungen des Bundesgerichtshofs in Straf-sachen 135 (Decisions of the Federal Supreme Court inCriminal Matters).

"K1LEINKNECHT-MULLER, op. cit. supra note 3, at§81c, n.5b.

12 5 Entscheidungen des Bundesgerichtshofs in Straf-sachen 133 (Decisions of the Federal Supreme Court inCriminal Matters).

13 See text accompanying notes 4, 5, and 6 supra.14 Assenting, EBERHARD SCHMIDT, Op. Cit. supra note

3, at §95, n.10; dissenting, KLEINKNECHT-MiULLER, Op.cit. supra note 3, at §94, preliminary note 7b.

15 KLEINKNECHT-M"LLER, op. cit. supra note 3, at§94, preliminary note 7d; EBERHARD SCHMDT, op. Cit.supra note, 3 at §97, n.9.

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THE EXCLUSIONARY RULE

they shall not be used in evidence, because theyrepresent a kind of written memory of the privi-leged person and hence are barred from any use,exactly as would be his oral evidence pursuantto Section 252 in conjunction with the relevantprovision of the CCP regarding the privilege ofsilence.

(4) Section 96, CCP, reads:"The submission or surrender of file-records

or other documents in official custody by authori-ties or civil servants shall not be demanded iftheir supreme office declares that the divulge-ment of the contents of such files or documentswould be detrimental to the weal of the FederalRepublic or a German Land."

Whether this provision contains a prohibitionagainst the use of evidence becomes acute in acase where such documents are submitted to thejudge in spite of the above declaration of thesupreme office, or where the supreme office makesout the declaration only subsequent to the receiptby the judge of the files and records. The prevailingopinion of the courts,' 6 and the better legal theory,17

is that in such case the judge is denied the use ofthe documents, although Section 96 does notprovide for such consequence expressis verbis.It would appear intolerable that the judge byusing such documents would contribute to theharming of the weal of the Federal Republic ora German Land.

The above prohibitions mainly exclude the useof evidence obtained in violation of statutoryprovisions, and this in principle both in favor andto the detriment of the accused.1 An appeal onlaw lies in the event of their violation.

Another question is whether the above prohibi-tions cease to be effective if he whose protectionthe law has in view (mostly the defendant or awitness) gives his consent to the use of such evi-dence. Doubtless the answer is no, if the lawforbids the use notwithstanding the consent of theprotected person. This applies for instance toSection 136a, paragraph (iii), CCP, with regardto a statement of the defendant which came aboutthrough the application of immoral means. Thequestion whether, in the absence of an explicitrule, the use is admissible with the consent of the

Is 72 Entscheidungen des Reichsgerichts in Straf-sachen 271 (Decisions of the Reichsgericht in CriminalMatters).

17 KLEINKNE HT-MiULLER, op. cit. supra note 3, at§96, nn.4b & c, and §94, preliminary note 7c.

is See KLEIu-NECHT-MifLER, op. cit. supra note 3,at §48, preliminary note 2b.

protected person should as a rule be answered inthe affirmative. Hence, for example, there shouldbe no objection to the use of the statement of awitness who made it without being advised underSection 52(ii), CCP, on his privilege of silence, ifhe, on being advised subsequently, consents tothe use of his former statement.

Some law theorists0 hold that the statutoryprohibitions against the use of evidence do notoppose its use in cases where such use will benefitpredominant, legitimate interests. This opinioncannot be favored, because it has no sufficientfoundation in the statute and might result in adangerous undermining of the statutory prohi-bitions.

ILLEGALLY OBTAINED EVIDENCE THE USE

OF WHICH IS PERMITTED

In two decisions 0 the Reichsgericht held unre-strictedly, without adducing reasons for its view,that the ban on a seizure in violation of the CCPexcludes the use in evidence of the illegally seizedobject. Today the courts no longer adhere to thisview, which is patently the application of thegeneral principle that the use of each and everyitem of illegally seized evidence is prohibited.Rather it is the opinion of the Federal SupremeCurt-the pertinent decision was rendered onNovember 13th, 19522--and the apparently gener-ally accepted opinion of the law teachers" thatevidence which in itself is admissible may inprinciple be used although it was obtained inviolation of legal provisions.

According to this opinion illegally obtainedevidence may be used-in default of a legal provi-sion to the contrary-in the following examples(which could be increased at choice):

(a) A weapon which contained the finger-printsof the defendant had been impounded by thepolice. The impounding proved to be faultybecause the police officer effecting it was not amember of the Criminal Police and therefore notauthorized to impound.

29 Id. at §48, preliminary note 2h III.20 20 Entscheidungen des Reichsgerichts in Straf-

sachen 92 (Decisions of the Reichsgericht in CriminalMatters); 47 id. 196.

1 Not published, but quoted in MoNATsscmur FORDEuTscHEs REcHT (German Law Monthly) 148 (1953).

"KLEINKNECHT-MUILLER, op. cit. supra note 3, at§48, preliminary note 2c; EBERHAPD SCHMIDT, op. Cit.supra note 3, at §94, n.14; NESE, DOPPELFuN T O-NELLE PROZESSANDLUNGEN (Bifunctional ProceduralActs) 139 (1950).

2See CCP, §98.

WALTER R. CLEMENS

(b) An impbrtant exhibit, impounded by aCriminal Police officer as the result of a search,was produced before the court. The search wasdefective, because in the absence of imminentdanger prevailing it should have been made onlyby order of the judge.u

(c) The weapon which the defendant hadallegedly used in committing a murder had beenseized during a search effected during the night-time, in violation of Section 104, CCP. 5

(d) The bodily examination of a witness hadbeen effected upon orders received by the police,in spite of the fact that contrary to Section 81c,CCP, the examination had failed to serve thepurpose of ascertaining a certain trail or a conse-quence of the criminal act, the examination couldnot be expected to be tolerated, detrimental effectson the health of the witness had been envisagedor taken place, or the police--in bad or goodfaith-had erroneously taken the view that immi-nent danger was prevailing. 6

(e) A suspect had justly been preliminarilyarrested, but contrary to Section 128, CCP, andArticle 104(iii), Basic Law.n had not been broughtbefore the judge during the day following hispreliminary arrest. He made a confession beforethe police on the second day following his arrest.This confession may be used unless the interroga-tion took place in violation of Section 136a, para-graphs (i) and (ii), CCP.

Although, as mentioned, the use of illegallyobtained evidence is in principle admissible in theabsence of a statutory ban, yet there is an exceptionto the rule which has been ably elaborated by thenotable CCP commentators Kleinknecht-Milller:u

"The statutory provisions governing proce-dure are based on a balance of the public interestin the enforcement of the State's prosecutingclaims and the public interest in ensuring thatthe State's measures which appear necessary toaccomplish this objective encroach only to atolerable extent upon the individual. The numer-ous reservations as regards the admissibility of24 See CCP, §105(i).25 For the wording of this section, see Clemens, Police

Detention and Arrest Privileges (Germany), 51 J. CRim.L., C. & P.S. 421, n.12 (1960).

28 KLENxNECnT-MULLER, op. cit. supra note 3, at

§81c, n.7, justly holds that in these cases the result ofthe examination may be used.

27 For the wording of these provisions, see Clemens,Police Interrogation Prinleges and Limitaions (Ger-many), 52 J. CriM. L., C. & P.S. 59, nn. 2 & 3 (1961).

28 See KLEL1,KNECHT-MiULLER, op. cit. supra note 3,at §94, preliminary note 7.

public constraint are the result of such com-promise between either interest. No Code ofProcedure will be able, though, to cram thiscounterbalance into rules fitting the thousand-fold phenomena of life. While as a guaranteefor the necessary continuity some rigor must beendured, yet in an individual case the rigor canreach such unbearable dimensions that a devia-tion from the statutory law appears adequate.This tacit general clause of the law justifies thejudge to found the inadmissibility of the evidenceupon a heavy procedural infringement, eventhough such consequence is not expresdy laiddown by the law. The judge in arriving at hisdecision will consider the public interest in theprosecution. An irreparable procedural blunderwhich might be ignored in the interest of thepublic claim to a prosecution for murder, can inpetty larceny cases ensue the inadmissibility ofthe evidence."

The legal basis of the right of the judge thus estab-lished to refrain in a single case from using evidencthe use of which is not prohibited by the statuteand therefore permitted in principle is to be foundin Section 261, CCP, quoted at the beginning ofthis report.

EVALUATioN

In accordance with most constitutions of thewestern civilized countries, the Basic Law for theGerman Federal Republic, dated May 23, 1949,establishes certain basic rights. To these belong inparticular the inviolability of human dignity(Article 1), the right to free personal develop-ment, the right to life and bodily integrity, andfurther the inviolability of the freedom of theperson (Articles 2 and 104), the inviolability of theabode (Article 13), and the safeguarding of prop-erty (Article 14). These rights, however, aresubject to certain restrictions; otherwise publicorder could not be maintained. The Basic Lawpays regard to that by providing, for instance, inArticle 2 that infringements upon the right tolife and bodily integrity and upon the inviolabilityof the freedom of a person can be made only on thebasis of a statute. Further, Article 13 provides that.searches can in principle be ordered only by thejudge and can be effected only in the forms pre-scribed by statute. And Article 14 says that thelimits of property are drawn only by statute.

Such legal restrictions of the basic rights areto be found in the CCP in great number: the

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THE EXCLUSIONARY RULE

blood-test confines the right to bodily integrity,the duty of a witness to appear before the courtand to make a statement infringes upon his liberty,the search of an abode violates its inviolability,the confiscation of an object entrenches uponproperty, etc. The CCP makes these infringementswith as much consideration as is possible byproviding, for instance, that certain witnessesshall be advised of their privilege of silence, thatthe taking of a blood-test can be effected onlyby a doctor, that the order for especially serious

-encroachments is reserved to the judge, thatnormally the search of an abode during the hoursof night is prohibited, and that the detention bythe police of a preliminarily arrested suspect istemporary. Infractions of these commands andprohibitions will as a rule also constitute infractionsof a basic right, because the Basic Law prescribesthat an encroachment upon a basic right shall beallowed only on the basis of a statute, and there-fore only with due regard to the precautions con-tained therein. Such infractions could, of course,easily be counteracted, in that the statute couldprohibit the use of all evidence obtained in viola-tion of constitutionally protected basic rights.

The German law has not laid down such rule,obviously because this was deemed incompatiblewith the "principle of the exploration of the truthwhich for the sake of the public weal demands theinvestigation, prosecution and just punishmentof crimes through the use of all evidenceavailable.""

On behalf of this principle the German law hasrather refrained from a general ban on the use ofsuch evidence as was obtained in violation ofbasic rights. The CCP has laid down bans on theuse of evidence only in respect of such evidence aswas obtained in violation of human dignity or ofthe privilege of silence in its broadest meaning,and where the use would result in detriments tothe weal of the Federal Republic or a GermanLand. By doing this, the law indicates that it givespriority to these rights and interests alone overthe principle of the free exploration of the truth.

CONCLUSION

In light of the foregoing observations, the threequestions posed for discussion in connection withthis topic3 can be answered as follows:

" 2 Entscheidungen des Bundesgerichtshofs in Straf-sachen 105 (Decisions of the Federal Supreme Court inCriminal Matters).

3 The three questions are set forth in the introductionto this symposium.

(1 & 2) A statutory ban on the use, in criminalproceedings, of evidence obtained in violation ofbasic rights could aim at (a) the "punishment"of the individual responsible for such violation, (b)the protection of the basic rights, or (c) the protec-tion of the suspect.

The "punishment" of the responsible indi-vidual-usually an official--cannot be achievedwith the help of such ban, because the ban wouldhave no consequences to his disadvantage. Thedisadvantages would be on the side of the stateor the public alone; because the ban would placerestrictions on the evidence available for the ex-ploration of the truth and thus hamper or defeatthe revenge on crimes which is in the state orpublic interest.

An effective punishment of the responsibleperson can be achieved only by holding him respon-sible under the Criminal Code,3' by suing him fordamages under the Civil Code, or by takingdisciplinary action against him under the appro-priate disciplinary statutes."

Doubtless, the ban in question affords a far-reaching protection of the basic rights. But inview of its hampering effect on the explorationof the truth, the question remains if this protectionis proper and worth being advocated in everycase of violation of basic rights. An injury tohuman dignity-the interrogation of the suspector a witness in violation of Section 136a para-graphs (i) and (ii), CCP-will by all means be

worthy of protection, particularly since a state-

ment thus effected fails to have the slightestevidential value in trial anyway. On the otherhand, if only a small violation of basic rightsoccurs-a search was ordered by a police officercontrary to Section 105, CCP, although there wasno imminent danger prevailing-the protectionof the basic rights will have to make way for thehigher-valued interest in the exploration of thetruth.

Whether the protection of the suspect calls for

a statutory ban on the use of evidence obtained inviolation of basic rights should be considered froma similar angle. Certainly, he has in principle the

31 In the case of an official, §341, Criminal Code,comes into question, which penalizes the official whowilfully and without being entitled to do so effects, orcauses or allows to be effected, an arrest or a preliminaryapprehension and detention; also applicable is §343,which penalizes an official who during an investigationuses or causes or allows to be used means of coercion toextort confessions or statements.

= This is possible under German Law.

HAIM H. COHN

right of seeing the proceedings against him per-formed lawfully. But this right will have to standback if only a negligible violation of a basic righthas occurred.

(3) As was mentioned above, the use of evidenceobtained in violation of basic rights is not gener-ally prohibited under German law. Rather, thelaw has decided on a compromise. It lays a banon the use of such evidence only in the few caseswhere it deems the violation of basic rights orstate interests to be an especially serious one;in all other cases it permits the use of illegally oreven unconstitutionally obtained evidence, onlyreserving to the judge a dissenting ruling in thescope of his free evaluation of evidence.

Naturally, it is open to argument whether the

German law has drawn a just border-line betweenadmissible and inadmissible evidence. In principle,the regulation of the law appears satisfactory andconvincing. Technically, however, it is not satis-factory. It would be desirable that in all caseswhere the CCP wants to prohibit the use of illegallyobtained evidence, such prohibitions were enunci-ated expressis verbis and just as dearly as was donein Section 136a, paragraph (iii). And it wouldfurther be desirable that the law said with alldistinction that in the absence of an explicit banany evidence obtained inviolation of statutoryprovisions may be used unless the judge rulesotherwise under Section 261, CCP. This wouldconsiderably decrease the differences of opinionin the interpretation of the law.

E. Israel

HAIM H. COHN*

The rule prevailing in Israel is the common lawrule that, for the purpose of deciding whethercertain evidence is or is not admissible, the courtwill not enquire into the methods by which thatevidence was obtained.1 The only exception to therule is that the court will enquire into the circum-stances under which a confession was made, so asto ascertain whether it was made freely andvoluntarily.

It is submitted that both the rule and the excep-tion stand in need of revision.

The sound principle underlying the rule is thatdirect evidence which is relevant to the issue andnot privileged from disclosure should be availableto the trier of fact; the sanction for any criminaloffence and the remedy for any civil wrong whichmay have been committed in obtaining that evi-dence are matters not for the law of evidence, butfor the criminal law or the law of torts, as thecase may be. Cases are known in which personshave been restrained by injunction from producingevidence wrongfully obtained'; such an injunctionis, of course, a remedy in tort, and implies noruling one way or the other on the evidential issue.

Justice, Supreme Court of Israel. Additional bio-graphical data may be found in 51 J. CRIM. L., C. &P.S. 175 (1960).-EDrTOR.

'8 WIGMORE, EVIDENCE §2183 (3d ed. 1940).2 E.g., Ashtu rton v. Pape, [1913] 2 Ch. 469 (C.A.).

In defence of the exclusion of illegally obtainedevidenge,"it might-apart from purely ethicalgrotffnds-be argued that there is another instancein which the law of evidence is made subservientto extraneous considerations of public policy,name.--the privilege attaching to state secrets.In the one case the public interest is to discourageille practices on the part of the police and otherevidence-collecting agencies; in the other casethe public interest is to encourage and safeguardthe proper and efficient administration of govern-ment. But the common law privilege in favour ofstate secrets has remained in full force and vigouronly in England, and even there it time and againarouses vehement public and professional reac-tions. It has never, in its absolute form, been partof the law of Scotland, nor is it recognized as anabsolute privilege by "what some commentatorsregard as the better decisions in the UnitedStates."'3 The Supreme Court of Israel, followingScots, Canadian, and the "better" Americanprecedents, has recently laid down that there is noabsolute privilege from the disclosure of statesecrets in Israel, but that the trial judge has tosatisfy himself, each time such privilege is claimed,that the harm which is likely to be caused to the

' MODEL CODE OF EVIDENCE, comment to rule 228,at 167.

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THE EXCLUSIONARY RULE

state by the production of the evidence outweighsthe public interest in a full disclosure to the courtof all evidentiary material relevant to the issue.4

It thus appears that where the common lawhas provided an exclusionary rule of evidence inthe public interest and for reasons of public policy,the modem tendency is to divest that rule ofgeneral and unrestricted application, and to vestin the trial judge a discretion as to whether or not,and to what extent, to apply the rule in the par-ticular case before him. And there seems to be novalid reason why the development which hasmarked the exclusionary rule in respect of statesecrets should not be brought to bear, mutatismutandis, on an exclusionary rule in respect ofillegally seized evidence. In both cases, there is aconflict of public interests and that conflict cannotjustly and equitably be solved by an inflexiblerule of general application, but rather should besolved in each individual case according to thebest judgment of the trial judge.

These considerations apply no less to the rulethat an illegally seized evidence is admissible thanto the rule that all such evidence is inadmissible.There might well be instances in which it wouldbe unconscionable to allow a party to establishhis claim by unlawful means. Actions in equity,for instance, have always been defeated where theclaimant has come to court with "unclean hands,"and in any civil or criminal case there may becircumstances which require or justify the exclu-sion of illegally obtained evidence which, in othercircumstances, might be held admissible in theinterest of justice or in the general public interest.

Moreover, while it might in many cases beeminently just and legitimate to penalize a personfor illegally seizing evidence by excluding thatevidence in a suit to which he himself is a partyor in the outcome of which he is beneficiallyinterested, it is not by any means just or legitimateto penalize the state for the illegal seizure ofevidence by one of its officers. That officer is nota party to the suit, nor has he normally any per-sonal interest in its outcome. The exclusion of suchevidence amounts to a penalization of the generalpublic for the wrong of one individual--surely aviolation of fundamental principles. While it maybe maintained that a sanction should cause awrongdoer to suffer, it can hardly be maintainedthat a sanction should not only fail to affect thewrongdoer, but also permit a different wrongdoer

4 Haetzni v. Ben Gurion, 11 Piskei Din 403 (1947).

to escape punishment for a totally unrelatedtransgression.

The Israeli Draft Code of Evidence' providesthat the court may refuse to admit in evidenceany document (including any form of record ofanything said, written, printed, or photographed)which the party producing it has stolen or obtainedby any other illegal means, or in making or circulat-ing which the party producing it committed acriminal offence. 6 A provision to this effect enablesthe trial judge, in his discretion, to exclude illegallyseized evidence, where such evidence is sought tobe produced by a party to the litigation beforehim; it does not enable him in a criminal case toexclude evidence obtained by the illegal act of somepolice officer who is, of course, a stranger to theaction (unless it is a private prosecution for anoffence by which the private prosecutor himselfwas personally injured7).

It is submitted that there is no difference inprinciple between a confession wrongfully extortedand other evidence illegally seized; the misconductof the police is as reprehensible in wrongfullyextorting the one as in illegally seizing the other.With regard to confessions, the law as it stands isthat, however wrongful the manner in which theywere obtained, they are admissible in evidence if(notwithstanding the manner of their extortion)they were in fact free and voluntary; the reason isthat if they were free and voluntary, they may betaken to be true. The ratio excludmdi, then, is notthat they were wrongfully obtained, but that theymay be false. This ratio cannot apply to evidencethe contents of which is normally unaffected bythe manner in which it was obtained, and as towhich such attributes as free and voluntary canhave no meaning. If the reprehensibility of policemisconduct in wrongfully extorting a confessiondoes not, of itself, warrant the exclusion of theconfession, there is no valid reason why the repre-hensibility of police misconduct in illegally seizingother evidence should, of itself, warrant the exclu-sion of that evidence.

From the point of view of the law of evidence,exclusionary rules appear to be justified onlywhere the evidence sought to be adduced is either

6 DRAFT CODE: OF EvDFNcE (1952) (English trans-lation by Harvard Law School-Israel CooperativeResearch, 1953).

6 Id., §75.7 Private prosecutions are permissible in Israel for

assault, defamation, trespass, and the violation of trade-marks and copyrights. MAGISTRATES' COURT JuRis-DICTION (AxzNDu r) Acr 5714-1954.

HIARUO ABE2

irrelevant or inherently unreliable. (The variousrecognized privileges from disclosure do not reallyaffect the admissibility of the privileged evidenceand are, therefore, not to be classified as exclusion-ary rules.) Where available evidence is both rele-vant and manifestly true, the requirement ofjustice that it should be produced and admittedis paramount, and no desire to penalize any indi-vidual wrongdoer should be allowed to stand inthe way.

The same result is reached when the problemis looked at from the point of view of practicalefficiency. In the United States where the exclu-sionary rule in respect of illegally seized evidencehas for many years and by many courts beenrigorously applied, abuses by the police alwayswere and still are notoriously widespread; thebest experts have expressed doubts whether theseexclusionary rules even tend to remedy the abuses.8

The fact is, the exclusion of such evidence hasfailed so far, both in the United States and else-where, to deter the police from resorting to illegalmeans to procure evidence. Maybe the reasonfor this deprecable state of affairs lies in the knowl-edge of police officers that the only sanction likelyto follow upon the illegal procuration of evidenceis its exclusion and rejection, a sanction which maylead to acquittal of the accused, but which doesnot entail any punishment of the police officer.

There may be police forces in which an officerusing illegal means to procure evidence is dis-ciplined; there may be others in which such anofficer is looked upon with approval and gratitude,having spared no effort and shown no qualms inexecuting his assignment. In the former, instancesof illegal seizure of evidence will be rare; in thelatter, they will be frequent. But in neither does

8 MODEL CODE OF EVIDENCE, comment to rule 505,at 243.

it matter much whether the illegally seized evi-dence is eventually admitted or excluded.

The use by police, of illegal means to procureevidence is not, however, a matter which may beleft to the domestic disciplinary jurisdiction of thepolice force itself. It directly and vitally affectsnot only the fundamental (or constitutional)liberties of the citizen but also the administrationof justice by the courts. It is an eminently criminalmatter, calling for criminal sanctions to be ad-ministered in as effective and deterrent a manneras is compatible with the rule of law.

The Israeli legislature now has before it a bill 9

which provides that where a court is satisfied thata confession sought to be produced in evidencewas unlawfully obtained-whether or not it wasadmitted in evidence-the court may commit theperson who has so obtained it to trial in the com-petent court, or, with his consent, may try himsummarily then and there for the offence he hascommitted in extorting the confession.10 Where acommittal order is made to another court, thefinding of the committing court that the confessionwas unlawfully extorted is Prima face evidenceagainst the extorter in the other court.

The same provision can and should be made inrespect of any illegally seized evidence other thanconfessions. Such procedural provisions coupledwith substantial increases in the punishment forcriminal trespass and other abuses of office whencommitted by a police officer, should be all that isneeded, and at any rate appears to be all that ispossible, to curb illegal practices on the part of thepolice. Exclusionary rules in the law of evidenceare neither useful nor justified.

I Law of Evidence Revision (Privileged Evidence)Bill 5718-1958.

10 The offence is punishable with three years' impris-onment. CRUANrA. CODE ORDINANCE §109B (Palestine1936).

F. Japan*

HARUO ABEI

THE TRADITIONAL VIEW been answered in the affirmative for many

Should illegally seized evidence be admissible year.to convict an accused? In Japan this question has Back in 1899 the Supreme Court of Japan held,

* The author gratefully acknowledges the encourage- who has been kind enough to refine the English and givement and advice of Professors Fred E. Inbau and him valuable advice on linguistic matters.Claude R. Sowle in preparing this article for publica- t Public Prosecutor, Ministry of Justice, Tokyo.tion. The author wants to express his appreciation to Additional biographical data may be found in 51 J.Miss Ruth E. McKee of the American Embassy, Tokyo, CRIm. L., C. & P.S. 178 (1960).-EDIToR.

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THE EXCLUSIONARY RULE

in a case under the Code of Criminal Procedure of1890, that the defendant's pocket notebook,illegally seized by a policeman, was lawfullyreceived in evidence.1 In 1949 the Supreme Courtheld, in a case under the Code of Criminal Proce-dure of 1922, that it was lawful for the trial courtto convict the accused by receiving a piece ofphysical evidence which had been seized withillegal procedure. In this case the Court amplifiedthe justifications for the traditional rule concerningthe admissibility of illegally seized evidence. Itclarified among others the following two points:(1) The illegality of search and seizure proceduredoes not change the nature, condition, or shape,and therefore the evidential value, of the thingwhich has been illegally seized; (2) The problemconcerning the admissibility of a statement ob-tained by illegal interrogation procedure should bedistinguished from the problem of the admissibilityof illegally seized evidence; in the former theillegality of the procedure may affect the substan-tive probative value of the statement, whereas inthe latter the illegality of the procedure has noth-ing to do with the evidential value of the thingseized.

PRESENT LAW AND PRACTICE

Under the new Code of Criminal Procedure of1948 there have been no Supreme Court decisionsprecisely on point, but there are some high courtdecisions which follow the traditional rule.3

Majority opinion among judges and realistic-minded lawyers appears to favor the traditionalposition as established by judicial precedents.4

The most important arguments supporting thetraditional rule are those pointed out by theSupreme Court decision of December 13, 1949.5Beside those, however, the following two reasonshave been maintained by the followers of thetraditional rule: (1) It would be useless to denyadmission to illegally seized evidence, because theprosecution may easily evade the strict rule byrepeating the seizure in compliance with law:(2) It would be better to remedy the unfairness

1VoL 5, No. 1. Sup. Ct. Crim. Rep. 38 (1899).1Decision of the Supreme Court (3rd Petty Bench,

D.ec. 31, 1949) (unpublished).3 E.g., Supp. No. 16 High Courts Crim. Rep. 41 (To-

kyo High Court 1950), holding an illegally seized re-ceipt admissible.

4 E.g., TE Suzu.me COURT, SECRETARIAT GENERAL,SIMMARY RECORD OF =xz NATIONAL CONFERENCE OFCRIMINAL JUDGES ON CRIMINAL PROCEDURE (Materialson Criminal Justice, No. 66) 110 (1952) (in Japanese).

$See note 2, supra.

of an illegal seizure of evidence by punishing theofficer who made the illegal seizure or by givingthe accused some recourse such as the right tocompensation by the state.

PROGRESSIVE VIEWS

Most scholars and progressive lawyers, in-fluenced or encouraged by such American expe-rience as the development of the "federal exclu-sionary rule," 7 have expressed various viewscounter to the traditional.8

The grounds for their contentions are not exactlythe same, but their views are unanimous on thepoint that it will be impossible to stop policepractices of collecting evidence with filthy handswithout squashing the very object (i.e., the con-viction of the accused) toward which the over-zealous police are desperately struggling.9 Thethreat of punishment is not effective enough tointimidate a police officer who attempts to be a"hero" by sacrificing himself for illegally seized

6E.g., Dando, Comments, 3 COLLECTED CRIMINALCASE CommENTs 150 (1943) (in Japanese); Koke, Ad-missibility of Illegally Obtained Evidence, 2 KEmoZASSal (J. of Crim. Law) (No. 3) 71 (1951) (in Jap-anese); Hirano, Criminal Procedure, in LAw LEcTURESERsIS 119 (4th ed. 1956) (in Japanese); Hirano, Con-trol of Investigation by Exclusion of Evidence, 7 KEiIOZAssut (J. of Crim. Law) (Nos. 2,3, and 4, consolidated)243 (1957) (in Japanese); HIRABA, LECTURE ON CRIM-INAL LAW 177, 178 (1955) (in Japanese); Adachi. Seiz-ure, Search, and Inspection, in 2 COURSE Ox LEGALPRACiiCE 342-44 (1953) (in Japanese); YOKOGAWA, ASTUDY ON CRIMINAL TRIAL 163 (1953) (in Japanese);Saito, Relations Between the Illegality in Procedure ofObtaining Evidence and the Admissibility of Evidence, 6Hoso Juio (Lawyers Ass'n J.) (No. 9) 1 (1954) (inJapanese).

7 E.g., see articles by Hirano, Koke, and Seito, citedin note 6, supra.

S Some maintain that illegally seized evidence shouldbe simply inadmissible; some contend that illegallyseized evidence should be inadmissible unless illegalityis due to minor technical errors; some contend that il-legally seized evidence should be inadmissible if theillegality constitutes a crime.

9See Hirano, op. cit. supra note 6, at 247: "If thecause of such illegal activities are eagerness or desire tosucceed in official business one may squash these objec-tives in preventing the illegal activities. Obstructing theconviction of the accused by excluding evidence will bethe most effective remedy for over-zealous investigatingofficers; criminal penalty will only invite their dissatis-faction and resistance. On the contrary, if the causes ofsuch illegal activities are feelings of superiority, arro-gance, or indifference toward citizens, exclusion of evi-dence will not be very effective; direct discipline bypunishment will be more effective.

"Which is the greater cause? This will not be simplydecided. However, at least it may be said that there is aconsiderable tendency toward lawlessness owing to ex-cessive eagerness; and it can be foreseen that this tend-ency will be growing in the future."

HARUO ABE

evidence.10 It has been suggested that it is notthe voluntary will of each individual officer butthe blind will of the whole police organizationwhich compels the individual to engage in theunderhanded investigation."

CONCLUSION12

Fairness and quick detection are two essentialcomponents of criminal justice. The harmonizationof these competing values has been and will bethe eternal objective of law. It is remarkable thatthousands of years ago the ingenious inventors ofChinese characters already perceived this func-tional structure of criminal justice and succeededin symbolizing it in an archaic style of the Chineseideograph signifying "law" or "justice.' 13

In the latter part of the twentieth century weare still suffering from the age-old problem ofachieving quick and strict justice together withfair and humanitarian justice. Unquestionablythe maxim "in dubio pro reo" has been an effectiveamulet to protect human rights of the suspect

10 In the Sugo case (a case of "agent provocateur";not guilty, the Oita District Court, Aug. 4, 1958; guiltybut excused from punishment, the Fukuoka HighCourt, Sept. 12, 1959), a police officer was found guiltybut excused from punishment for having supplied aradical group with dynamite for blasting a police box;but later he obtained a good position in a publishingcompany having connection with the police organiza-tion. It seems to be the general feeling among the policethat a wounded "hero" must be warmly taken care of.

11 Hirano, op. cit. supra note 6, at 247.12 This conclusion is purported to be a conclusive

statement not only for the present article but also formy other articles published in this series. See 51 J.CRIM. L., C. & P.S. 178 (1960); 51 id. 429 (1960); and52 id. 67 (1961).

C3 f. HsU SHEN (2nd Century, A.D.), Snuo WEN CHMHrzu 4352 (Ku lin edition, I-hsiien shu-chi, Shanghai,1928). Etymologically the rather complicated symbolconsists of two parts. The left hand component meanswater, which in ancient times symbolized the even-handed justice. The right hand component, which againcan be broken down into an upper part and a lower part,signifies an imaginary animal resembling a unicornwhich was supposed to have the supernatural power oftossing the guilty party to one side, out of the forum-amystic living lie-detector! Our oriental ancestors whoinvented this ingenious device for symbolizing the pro-found abstract concepts seem to have perceived the twoessential functions of criminal justice, i.e., (a) quick andaccurate identification of the guilty from the innocentand (b) fair and even treatment of the people. For theancient ideograph for "Law" see the cover of CRimiNALJUSTICE IN JAPAN (Ministry of Justice, Tokyo, 1957,2d ed. 1960).

and accused from uncivilized practice on the partof criminal investigators. So long as instancesremain of uncivilized police practices, 14 any devicethat safeguards human rights against abusiveinvestigating authority is worthy of retention.

On the other hand, it should not be overlookedthat emphasis on the rights of suspects has ledsome judges to discharge suspicious defendants indifficult cases, particularly when there has beenno confession to corroborate circumstantial evi-dence.

5

It is my belief that the way of bridging the gapbetween idealism and realism is not to be found inelaborating the existing system into one of logicalcomplexity or exquisite technicality, but in re-constructing the system practicably, giving con-sideration to human weakness as well as to humanwisdom. The first step will be the establishment ofa criminal justice with less reliance on confessionor admission and more on the development ofscientific investigation. The efforts to attain thisobjective should be accompanied by the painfulactivity of educating and enlightening both thegeneral public and criminal investigators. It shouldbe bome in mind that only by way of this thornypath can we hope to solve those difficult problemscentered around the privilege against self-in-crimination, the law of arrest and interrogation,the law of confession, and the rule relating to ille-gally seized evidence.14 Among the recent cases in which judgments of

"guilty" were reversed by the high courts and the Su-preme Court for the reason that confessions were un-lawfully coerced, the following four cases were mostshocking and sensational: the Matsukawa case, theFutamata case, the Sachiura case and the Yakai case.In these cases, in which most defendants had been sen-tenced to death in the district courts, police brutalitywas ascertained by the high courts and the SupremeCourt.

5 Among several recent cases of this nature, theCrowley case was most typical. In this case an Americanmillionaire allegedly, while intoxicated, killed hisbrother-in-law in the Imperial Hotel in Tokyo, and hewas prosecuted for the crime of "inflicting a bodily in-jury resulting in death" (PENAL CODE, art. 205, par. 1).The Tokyo District Court acquitted the accused becauseof insufficient proof. The records show that there weremany pieces of circumstantial evidence tending to provehis guilt, but the judges appeared to hesitate to convicthim on circumstantial evidence. In this case the policedid not press a confession, and naturally there was noconfession or admission volunteered by the accused. Itis reported that when the police asked him to be testedon the polygraph he refused the request in a highly emo-tional manner.

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THE EXCLUSIONARY RULE

G. Norway*

ANDERS BRATHOLMt

I.

Before we examine the question of excludingunlawfully acquired evidence, it is well to mentionbriefly the rules which apply to the right of thepolice to obtain evidence against an accused per-son.

- The right of the police to search is strictly regu-lated by the Norwegian Criminal Procedure Actof 1887. When a person is suspected on reasonablegrounds of a punishable offence for which the

maximum statutory penalty can exceed a fine, the

police may search the person or his dwelling, pro-

vided that there is reason to believe that the search

will lead to his arrest, or to discovery of evidence

of the punishable offence, or to seizure of objects

involvedSearch of another party's dwelling can also be

undertaken under certain circumstances, for in-

stance when there is strong reason to believe that

a wanted person, stolen property, or traces of a

punishable act can be found in the dwelling.2

Whether the above-mentioned conditions are

present or not, the police can institute a search of

a place of business which can be operated only

with police permission or which is available to the

public.3

If the person concerned does not consent to the

search, it can be undertaken only on a court order.

But if the purpose of the search is likely to be

thwarted by the delay involved in awaiting the

court order, the prosecuting authority can issue an

order to proceed with the search. If there is not

even time for this, the search may be undertaken

by the police without an order, provided there is

strong suspicion of an offence for which the

maximum statutory penalty is a term of imprison-

ment longer than six months.4

A police officer who, by order of the court or

the prosecuting authority, is empowered to arrest

* This paper is mainly an abbreviated form of an

article written by the author on the exclusion of illegallyseized evidence. The article was published in NoRmisicTIDsKRIUF FOR RETTSVITENSKAP (The Northern Jour-nal of Law) 109-32 (1959).

1 CRIMINAL PROCEDURE AcT (hereinafter called CPA)of 1887, §221.

2 Ibid.3 CPA, §222.4 CPA, §223.

an accused person may search the latter's dwellingwithout special permission. 5

The Act contains different regulations for the

carrying out of the search. 6

. In practice the accused generally consents to

the search, thus making it unnecessary for the

police to obtain an order from the court or theprosecuting authority.

The Criminal Procedure Act also contains

regulations on when seizure can take place. Themain provision is that seizure may be made of

objects which can be considered of importanceas evidence, or that ought to be regarded asconfiscable.7

If the person concerned does not consent to

the seizure, a court order must be sought, or if

time does not allow this, an order from the pros-ecuting authority. If even then the delay would be

too long, the police may act on their own author-ity.8

If there has been no time to obtain a court order,

the question whether the seizure shall be upheldmust be laid before the court at the earliest possibleopportunity. 9

A person in possession of an object considered* important as evidence can, if he is obliged to offer

testimony iri the case, be ordered by the court to

produce the object. 0 Those exempt from the

obligation t6 give evidence are chiefly the family

of the accused and persons bound by professional

secrecy to whom the accused has given confidentialinformation (defending counsel, doctors, ministers,

etc.).11

There are detailed provisions in the act regarding

the method of carrying out seizure and returning

objects seized to the owner, etc. 2

Evidence against an accused person may also

be obtained by interrogation, blood tests, con-

frontation and the like. The question of the extent

to which the police can question the accused,

submit him to various tests, etc., is dealt with

5 Ibid.6 CPA, §§224-26.7 CPA, §212.SCPA, §215.Ibid.

10 CPA, §216.n CPA, §§176-78.

12 CPA, §§218-20.

ANDERS BRATHOLM

more thoroughly in earlier articles by the authorin this series. 13

II.

The Norwegian Criminal Procedure Act has noprovision concerning the admissibility of evidenceseized in contravention of the Act. Nor is muchguidance to be found in literature on Norwegiancriminal procedure. The only declaration of prin-ciples I can find is given by the Norwegian Profes-sor of Criminal law, Johs. Andenaes, who declaresthat if a confession is extracted under conditionsat variance with those required at police ques-tioning, there is much to be said for excluding theconfession on the principle that the police shouldnot be allowed to offer evidence acquired in anillegal manner. But, it is added, it is doubtful ifour courts, generally speaking, would accept sucha principle.

14

So far as I can see the question of the steps thatshould be taken with regard to illegally seizedevidence has not been comprehensively dealt within any Scandinavian country.

iII.

Before we go further into the question of howthe problem should be solved in Norway, it mightbe profitable first to consider the most importantreasons for and against excluding illegally seizedevidence.

In favour of the acceptance of illegally seizedevidence, it may be put forward that the task ofthe court is to come to a materially correct deci-sion, and that all information, apart from thatpositively excluded by the law, should thereforebe taken into consideration. There might be un-happy results, both in respect of the security ofsociety and general deterrence, if persons whoare blatantly guilty escape punishment simplybecause the evidence was obtained in an unlawfulmanner. This is especially important in the caseof criminals who might commit grave punishableoffences if not deprived of their liberty. If there isreason to reproach the police or others on accountof the method in which the evidence was obtained,liability should he met in the form of punishmentor other measures. If the measures which can now

13 See Bratholm. The Pri'ilege Against Self-ncrimnina-lion (Norway). 51 J. CRnf. L., C. & P.S. 186 (1960);Bratholm. Police Interrogation Privileges and Linita-lions iNorav). 52 id. 72 (1961).

1 ANDENAES, POLITIFMBEDSMENNENES BLAD (TheJournal of Police Officials) 154 (Oslo 1958).

be applied are not considered stringent enough,stronger remedies should be considered.

Against the admission of illegally seized evi-dence, the objection can be raised that this wouldencourage the use of unjustified methods of investi-gation. For even if the guilty officer runs the riskof punishment or other sanctions, it would inpractice be difficult to instire that the sanctionsin fact are applied. It is clear that it is necessaryto have a policeman investigate the case againstanother policeman, and this position, taken to-gether with the circumstance that the illegal actwas committed in the course of the fight againstcriminality, might easily lead to weakness inelucidation of the case and any possible penalconsequences. Only if broad rules are laid downforbidding the admission of illegally acquiredevidence can one hope to be able to put a stop toillegalities of this kind.

Another objection against the admission ofillegally acquired evidence is that it could causedifficulties in respect of the rehabilitation of theindividual offender, and besides it might reducethe general respect for the law. Experience in-dicates that criminals are especially sensitive toencroachment on the part of the authorities andthat the feeling of having been unjustly treatedcan have the effect of inducing criminality. Thesehandicaps will, in the long run, more than counter-balance the advantage of convicting one or anothercriminal as a consequence of the illegal methods.

Besides, it can be claimed that it will be of littlepractical significance if an offender now and thenshould escape punishment. This is especially thecase today when the suspension of prosecution orsentence has to wide an application.15 The purposeof the prosecution often seems to be fulfilledwhen the case is cleared up and the offender identi-fied, and this he generally will be, even if theevidence against him is excluded with the resultthat he escapes a formal sanction.

There seem to be weighty reasons in favour ofboth solutions, and this may well indicate that it isimpractical to lay down any definite regulations in

s According to the Norwegian criminal statistics of1958, about three out of four persons guilty of a felony(felonies may be generally defined as offenses punishableby more than three months' imprisonment) got sus-pended sentence or suspended prosecution. In Norwaythe Public Prosecution Authority may suspend prose-cution though the guilt of the accused appears beyonddoubt. For further information, see Bratholm, Arrestand Detention in Norway, 1U8 U. PA. L. Rzv. 336, 341,nn.24, 25, & 26 (1960).

[Vol. .:

THE EXCLUSIONARY RULE

favour of one solution or the other. As far as Iknow, a definite choice between solutions has notbeen made in any country, but to a greater orlesser extent the decision has depended upon thecircumstances in each particular case. In somecountries, however, an attempt has been made tolay down definite solutions in certain types ofcases; however, it seems to have proved difficult,even in such limited fields, to follow definite rules,16

in the absence of compulsory legal provisions suchas those in the West-German Criminal' Procedure

-Act of 1950. This includes a provision, Section136a, which forbids various closely defined methodsof improper questioning. Evidence obtained by useof the forbidden methods cannot be admitted,even if the accused himself consents to the ad-mission. Certainly no other country has suchextensive provisions for the protection of theaccused against illegal methods of questioning.These rules mustbe seenagainst the background ofexperiences gained by the German people underthe National Socialist regime.

IV.

When deciding whether unlawfully acquiredevidence should be excluded, there are a numberof points which may be taken into account.

(1) Attention should first be paid to the gravityof the unlawful procedure, whether it was wilfulor inadvertent, or whether, perhaps, it was theresult of completely innocent misconception ofcompetence. In the latter case it does not seemlikely that there would be any reason to excludethe evidence.

Generally speaking, a course of procedure whichis punishable must be considered more grave thanone to which no penalty is attached, in so far ascriminal legislation gives special protection toessential interests. But there are important inter-ests which do not lend themselves to protectionby criminal law, or which have not yet attainedsuch protection, and therefore decisive weightshould not be laid on whether the course of actionis a crime in law. In Anglo-Saxon law, for example,evidence has been excluded on the grounds thatthe method of obtaining it involved an "unfairtrick" against the accused.17

16 See COWEN & CARVER, EssAYs ON THE LAW OF

EvIDENcE 77 (Oxford 1956); Williams, Evidence Ob-tained by Illegal Means, CRim. L. REv. (Eng.) 342(1955); Comment, 49 J. Crim. L., C. & P.S. 59, 63(1958).

17 COWEN & CARTER, Op. cir. supra note 16, at 88, 102.

Another important point to consider is Whethermaterial encroachment has taken place or whetherthere has only been a breach of the form pre-scribed by law. There is, for example, an essentialdifference between the seizure of evidence whenthe law positively forbids it (for example a medicalcase history) and the seizure of evidence when thepolice have failed to obtain consent of the court ina case where they could have obtained consenthad they requested it. In the last mentioned casethere is little to be said in favour of excluding theevidence, since the police have not acquired evi-dence unobtainable under the strict provisions ofthe law.

Generally, unlawful methods of proceduredirected against the person, in the form of com-pulsion, threats, and the. like, must be consideredmore serious than unlawful acts performed inobtaining material evidence. A method of pro-cedure is considered especially serious if it involvesa breach of Section 96 of the Norwegian Consti-tution, which forbids questioning with torture.

(2) It must also be considered important whetherthe unlawful action constitutes a direct injury tothe accused or whether it is harmful first and fore-most to the interests of others. One can, for exam-ple, imagine that the police have acquired decisiveevidence against the accused by an unlawfulexamination of a witness or by an unlawful searchof the house of a third party. In these cases theaccused hardly has a justifiable claim that theevidence should be excluded, since he had nocontrol over the object produced in evidence andtherefore should have been prepared for the factthat the witness or the third party might consentto the searching. On the other hand, in certain ofthese cases the wiltess or the third party must havethe right to oppose the admission of evidence. Thedecision probably depends on a weighing on theone hand of the importance to justice of the ad-mission of the evidence, and on the other hand ofthe extent of injury the admission could cause tothe offended party.

(3) Who obtained the illegal evidence is also asignificant question; it seems, generally speaking,less harsh to admit evidence unlawfully obtainedby a private person than by the police, since thereis no question of encroachment on the part of theauthorities.

(4) Further, the type of accusation is important.The more serious the accusation, the more hesi-tancy must there be in excluding evidence. This

ANDERS BRATHOLM

is especially the case when there is a danger thatthe offender will commit more serious crimes if heis not imprisoned.

(5) The strength of the evidence is also probablyimportant (if there is a basis for judging itsstrength). There will be little hesitancy in rejectingunlawfully obtained evidence considered to havelittle importance to the outcome of the case.However, in many cases, the fact that evidencewas obtained unlawfully will itself lead to a seriousweakening of its importance; if, for example, aconfession is obtained by force, there is little.reason to pay attention to it.

(6) Lastly, an important point may ariseconcerning when an objection is raised against theunlawfully acquired evidence. The longer anaccused person or his counsel waits before puttingforward an objection, the weaker must that ob-jection become, since the public prosecutor mayhave omitted to introduce other evidence, relyingon the evidence already before the court. More-over, difficult problems of procedure will easilyarise if the accused postpones the raising of hisobjection, especially if he raises it for the first timeafter the evidence has been laid before the trialcourt. If evidence is to be excluded in such a case,either the court must disregard it-no easy matterwhen it is already known-or a new trial must beinstituted, with other judges. These practicaldifficulties could justify the admission of evidencethat ought to have been excluded had the objec-tion been raised in time, especially when theaccused is to blame .for failing to object at anearlier stage.

V.

It may be asked how the points of view given inthe paragraphs above tally with court practice inNorway in respect of the admission of unlawfullyobtained evidence. In reply it must be noted thatit is difficult to form a reliable picture of this prac-tice since there are so few published court decisionsin Norway.

The dearth of court decisions could be taken asindicating that evidence is seldom obtained inNorway in an unlawful manner, but this would bea hasty conclusion. In this field one must assumethe existence of a certain number of unknowninstances of illegal seizures of evidence.

First, unlawfully obtained evidence can aid inclearing up a case without being known to anyonebut the investigator concerned. For example,

the investigator might come upon a trace of theguilty party's actions by unlawfully openingletters or tapping telephones. By means of suchinformation the investigator finds a lead to otherevidence, and neither during the investigation norlater is it disclosed that the case was cleared upon the basis of unlawful means.

It must also be assumed that a certain numberof accused persons who have been victims ofunlawful methods of investigation omit to makea complaint on this point, either because they arenot aware that the method is unlawful, or becausethey cannot prove that any unlawful act has beencommitted, or-if they can prove such an act-that there is any causal connection between theunlawful method of procedure and the evidence.

It is also possible that many accused personsand counsel in Norway doubt the possibility ofexcluding unlawfully obtained evidence. This toocanhelp explain the paucity of cases in practice.

The scarcity of court decisions can also beattributed to the fact that the public prosecutor issomewhat reserved in using illegally obtainedevidence, especially if the case turns on a seriousillegality, both because he desires to conceal theillegality and because he considers it unfair to theaccused to make use of the evidence. It may bethat a fully solved criminal case is shelved whereit would have been tried if the evidence had beenobtained in a regular manner.

VI.

I shall describe some cases of unlawful obtainingof evidence which have been recorded.

The first case concerned evidence obtained bymeans of unlawful arrest and seizure. The caseconcerned two Swedish citizens who had unlaw-fully transported a consignment of coffee fromNorway over the border to Sweden, where theywere arrested by Norwegian customs officials.They both accepted a fine, but later withdrew theiracceptance and claimed that the decision must bequashed and the impounded coffee handed overto them because the arrest and seizure had takenplace unlawfully on Swedish territory.

The judge of the Supreme Court delivering thecourt's opinion'8 declared that even if the customsofficials had acted illegally in arresting the accusedon the Swedish side of the border, this could be ofno decisive importance in judging the criminalnature of their conduct or the validity of their-

" Norsk Retstidende (Nor. Law Rep.) 684 (1918 I).

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THE EXCLUSIONARY RULE

acceptance of the fine; the complaint was there-upon dismissed.

The second case concerned the use of unlawfulmethods of questioning. It involved three traitorswho lay in prison in 1945 suspected of variouspunishable actions during the war, including theliquidation of a member of the Norwegian Resist-ance Movement The accused declared themselvesnot guilty of the liquidation. Two constables ontemporary service in the police decided they shouldattempt to extract a confession by taking the

- suspects by night to the place where the liquidationhad taken place, under conditions as similar aspossible to those which obtained on the night ofthe liquidation. The first man broke down andconfessed before they had reached the spot; thesecond was taken there and then confessed;thereupon the third man admitted his guilt, beforeit was necessary to subject him to the same treat-ment.

The judge of the Supreme Court delivering thecourt's opinion"° declared that on the occasionreferred to the police had openly violated a numberof procedural provisions designed for the protectionof the accused, and that their action bore the stampof a disrespect for law which was foreign to Nor-wegian justice and which must not be tolerated.But the court did not conclude that the confessionsmust therefore be excluded. The question of theadmissibility of the evidence was not discussedclearly, and as far as I can see from the judgment,it was not clearly maintained by the defence thatthe manner in which the evidence was obtainedshould cause the court to disregard it completely.

There are some decisions concerning the ad-missibility of a statement given to the police byone closely related to the accused, when the wit-ness was not informed by the police (as is required)of his right to refuse to make a statement, butlater pleads exemption from court proceedings.The evidence can be used either by introducingthe police report containing the witness's declara-tion or by testimony of the police officer concern-ing what the person questioned told him. Opinionson the admissibility of such evidence are divided.There is no solution offered in the law, and con-sistent precedents are not available. In some casesevidence is admitted, but in others it is excluded.

VII.

On the basis of the meagre precedent referredto here, we must conclude that apparently no

11 Norsk Retstidende (Nor. Law Rep.) 46 (1948).

extensive powers exist under Norwegian law toexclude unlawfully obtained evidence; neverthe-less, we may not conclude that no such powersexist, since in the cases where such evidence hasbeen admitted no especially strong reasons forexcluding it have been present.

little can be said in favour of quashing theconviction in the coffee smuggling case. The un-lawful action of the customs officials hardlyseems grave according to the information at hand.That the accused persons accepted the fine andwaited to object until the time of their appealmay well have contributed to the result, eventhough. the Supreme Court did not deal with thisquestion.

Nor does the sentence of the Supreme Courtin the case of the traitors seem open to criticism.The accusation related to the most serious crimeknown to criminal law, premeditated murder;moreover, even if the method of investigationwas highly irregular, it can hardly be described asgrave under the conditions which prevailed justafter the war.

Another important point concerns the practicaldifficulties which probably would have arisenhad the court decided to exclude the unlawfullyobtained evidence in this case. It is not positivelystated, but there is a strong probability that thesuspects' confessions and their detailed statementson the liquidation led to the revelation of otherevidence.

Had the court quashed the conviction becauseof the confessions, it would then have had to passon the admissibility of the evidence brought tolight as a consequence of the confessions. Muchcould be said in favour of excluding this evidencetoo, for the police would not have been able toobtain it if they had proceeded in a strictly lawfulmanner.

In practice it is at times difficult to distinguishbetween evidence directly obtained by unlawfulmethods, and other evidence; it may be askedhow this doubt can be eliminated. Should allevidence be excluded which is a consequence ofevidence obtained in an unlawful manner, or shoulddiscretion be the keynote of admission? The de-cision should probably be made along the lines Ihave mentioned earlier, that is, on the basis ofsuch circumstances as the degree of illegality ofthe method of procedure, the type of crime, andso on.

In the case involving the traitors, if the charge