The American Exclusion Rule Debate: Looking to England and Canada for Guidance

I. INTRODUCTION The United States perhaps most adversarial criminal justice system in world.1 The judge's role in U.S. system may be best described as intermediary between opposing forces-police officers and suspects in crime-investigation phase and prosecutors and defendants in adjudication phase. The role of intermediary is a role to which judges willingly subscribe because position of and detached magistrate is lauded as necessary to protect ordinary citizens from police officers engaged in competitive enterprise of ferreting out crime.2 One obvious and desirable role of neutral judge in adversarial system is to establish and enforce rules by which all parties must abide. Judges in United States fulfill this responsibility through their dual powers of interpreting and enforcing rights guaranteed by Constitution, statutes, and common law, and via their inherent control over judicial proceedings.3 There are times, however, when enforcement of rules inhibits true function of criminal justice system-a fair determination of whether or not accused is guilty of allegations charged beyond a reasonable doubt. Nowhere else in U.S. criminal justice system is this more apparent than in instances where courts exclude evidence because it was obtained in violation of one of these established rules. U.S. courts have established exclusion as automatic remedy to a number of situations, including conducting a search or seizure without a search warrant and obtaining a confession from a suspect who not been informed of his Miranda rights.4 The American exclusionary rule, however, is at best a controversial effort to achieve its stated goals. Various defenders of rule claim it has a deterrent effect on police misconduct,5 maintains the integrity of adversary system,6 and prevents government from benefiting from its own misconduct.7 Critics of rule condemn it as an all-or nothing remedy,8 that only offers a benefit to guilty9 and exacts a huge toll in lost convictions which is not worth rule's negligible benefits.10 Rather than contribute to this debate by attacking or defending rule, this Note will heed words of then-Judge Benjamin Cardozo, who noted that exclusionary rule been subject of so much debate that little of value can be added to that which already been written.11 Accepting that exclusionary rule is perhaps most-contested doctrine in U.S. criminal law,12 this Note will suggest how it can be improved. To improve upon American exclusionary rule, one only to look at how similar evidentiary issues are resolved in England and Canada. Neither of these countries a rule of automatic exclusion because each recognizes that there are circumstances in which exclusion of probative and reliable evidence neither furthers purposes of criminal justice system nor effectively serves any other goal. While United States treats exclusion as remedy for infringement of rights,13 Canada and England treat question of exclusion as issue separate from any remedy or sanction for alleged violation of individual rights.14 This Note contends this two-step approach is a superior analytical framework that eliminates problems raised by critics of American exclusionary rule, while more directly and efficiently achieving same goals. This Note compares exclusionary rules of Canada and England to American rule. The legal systems of United States, Canada, and England have many similarities, both in terms of form (the adversarial process) and substance (seeking to preserve similar rights and achieve similar values).15 All three nations have same basic framework for criminal investigations. In a typical investigation, law enforcement officers are required to obtain a search warrant before searching for or taking private property, and those officers face personal or professional sanctions if they do not have a warrant or if they exceed scope of that warrant. …

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