The Exclusionary Rule of Evidence

Comparative Analysis and Proposals for Reform

Kuo-hsing Hsieh

• Editorial: Routledge
• Año: 2016
• ISBN:
  9781317032434
• Edición: 1
• Categoría: Law
• Categoría: Criminal Law

This groundbreaking monograph asserts the need for the establishment of an exclusionary rule of evidence in China as a means of protecting the people from police wrongdoing. The author skilfully explores the foundations and developments of the exclusionary rule in the UK and USA, assessing the rule from a comparative perspective and illuminating some issues that may arise in transferring the rule from one legal system to another. Divided into two parts, the first part discusses lessons from the past, and provides an in-depth examination of the development of the exclusionary rule in the UK and USA, covering rationales, debates and the theoretical foundation of the exclusionary rule in the constitutional context. The second part looks to the future and the establishment of a Chinese exclusionary rule. Specifically, it analyses the effects of police torture, the passive attitude of judges and the need to establish such a rule in practice for future protection of human rights. The author's experience in criminal law and procedure allow him to adroitly analyse crucial issues on both theoretical and practical level that is understandable to those working in the areas of human rights, comparative criminal procedure, and the Chinese legal system.

Chapter 1
Introduction

1.1 We Are So Very Much Alike

The power of a police officer in conducting a search is immense. He or she is entitled forcibly to enter the citizen’s home, even at midnight, to wake a person from sleep, rummage in his or her drawers, papers, letters and most private possessions, or upset the entire building. Although the particularity clause of the warrant defines the scope of a search, it is said that the police allegedly abuse their search authority.¹

The conduct of some police officers can only be described as outrageous and totally inconsistent with their responsibilities. In 1992, for example, London police arrived at Mr. Hsu’s residence because a previous lodger complained to the police that Hsu was preventing her from collecting her belongings from his home. The officers demanded entrance but Hsu refused to admit them without a search warrant. The door was forcibly opened. They had no search warrant. He was arrested forcefully. He was punched in the face and kicked in the back (he later passed blood in his urine). He was also racially abused and placed in a cell for over one hour. He went home only to find that his house had been entered and some of his own property was missing. He had a predisposition to depression and was socially and culturally isolated and he was still suffering symptoms of a post traumatic distress disorder three years after the incident.²

Some people have even lost their lives during police searches in the United States. For example, in 2006, a police SWAT (Special Weapons and Tactics) team in Atlanta stormed a house and shot a 92-year-old woman, Kathryn Johnston, who lived alone in the roughest neighborhood in Georgia. The police claimed that they had bought drugs at the home from a man known only as Sam and were returning to search the residence.³

The historical background of the exclusionary rule was rooted in English and American experiences. In 1604, the sheriff broke into Semayne’s home and seized his property in the United Kingdom. Sir Edward Coke declared that “[t]he house of everyone to him is his castle and fortress.”⁴

In 1761, there was widespread objection against the writs of assistance in all American colonies. These writs were general search warrants that permitted the authorities, especially customs officials, to search whoever and wherever they pleased for any reason—or for no reason, without any necessity for a showing of probable cause. The officials did not need to have specific suspicions about any person in any place. Section 5(2) of the Act of Frauds of 1662 provided:

And it shall be lawful to or for any Person or Persons, authorized by Writ of Assistance under the Seal of his Majesty’s Court of Exchequer, to take a Constable … or other publick Officer inhabiting near unto the Place, and in the Day-time to enter … Any House … Or other Place, and in Case of Resistance to break open Doors, Chests, Trunks and other Package, there to seize, and from thence to bring, any Kind of Goods or Merchandize whatsoever, prohibited, and to put and secure the same in his Majesty’s Store-house.⁵

A group of Boston merchants retained Attorney James Otis, Jr. to challenge the legality of the writs of assistance for the first time. Otis attacked the writs:

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty, and to the fundamental principles of law that was ever found in an English law book. It is the power that places the liberty of every man in the hands of every petty officer … One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may entry—may break locks, bars and everything in their way—and whether they break through malice or revenge, no man, no court can inquire—bare suspicion without oath is sufficient.⁶

Although the Superior Court upheld the legality of the writs, John Adams, one of the fathers of American independence, had recalled Otis’s memorable speech as the prologue to the American Revolution.⁷

There were two most famous related English cases decided by Lord Charles Pratt Camden.⁸ The first is Wilkes v. Wood.⁹ The case was famous on both sides of the Atlantic. Broad search and seizure power for the first time was introduced in England by the Tudors.¹⁰ General warrants were frequently used to close down libelous printers during the era of the infamous Star Chamber.¹¹ In 1763, John Wilkes, a Member of the House of Commons, published a pamphlet series vehemently attacking the British government. Lord Halifax, the Secretary of State, issued a general warrant and ordered four messengers to search for, arrest and seize the authors, printers, and publisher, as well as their papers. Wilkes’ bureau was thoroughly ransacked, and all his books and private papers were seized and taken away. Forty-nine persons were arrested and five houses were searched in three days on the strength of that single warrant. Wilkes filed suits for trespass and challenged the legality of the general warrant in civil damage suits. Chief Justice Charles Pratt held the general warrants were null and void and that Wilkes could recover damages of £5,000 for the illegal search and seizure:

To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour … If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.¹²

The second is Entick v. Carrington.¹³ In 1762, according to the executive warrant issued by the Earl of Halifax, the Secretary of State, the defendants Nathan Carrington and others, with force and arms broke and entered John Entick’s dwelling-house, broke open the doors, chests, drawers, searched and examined all the rooms in his dwelling, house and all the boxes, and took away hundreds of printed charts, pamphlets and papers. Entick was suspected of publishing seditious libels. He sued the defendants for trespass. The jury found that the defendants did trespass and awarded Entick £300. This judgment exercised great influence on the subsequent case law on search in England as well as in the United States. Lord Camden dismissed Star Chamber precedent and condemned the invasion of homes and found the warrant was wholly illegal and void:

If this point should be determined in favor of the jurisdiction, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel … If this is the law it would be found in our books, but no such law ever existed in this country. Our law holds the property of every man so sacred that no man can set his foot upon his neighbour’s close without his leave. If he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law … We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property a man can have.¹⁴

As news spread about the ruling, Lord Camden was hailed both in England and America for his bold and clear-eyed expression of the common law and the rights of Englishmen.¹⁵ The United States Supreme Court described Entick as “one of the landmarks of English liberty” and “one of the permanent monuments of English liberty.”¹⁶

During the last half of the eighteenth century, English and Americans were both suffering a recurrence of highhanded search and seizure measures, which violated the maxim that “a man’s house is his castle.” That is why both James Otis, Jr. and Lord Camden decried the evil of uneven, unchecked and progressively oppressive executive power of the officers. The roots of the exclusionary rule can be found in the common law distaste for intrusions by state officials.

The United Kingdom (except Scotland) and United States share the same common law roots from England.¹⁷ In the past, English judges have often prided themselves as protectors of citizens’ rights.¹⁸ At first sight, the similarities of two respective criminal justice systems are particularly striking in many ways, for example the emphasis on the adversary system, the presumption of innocence, and the sense of fundamental fairness required for a just procedure. Equally striking, however, is the lack of similarity between the two systems in significant areas, for instance the process employed to correct wrongful convictions¹⁹ and the admissibility of illegally or unfairly obtained physical evidence in criminal trials.

1.2 But Oh the Difference

Perhaps the most striking thing about the exclusionary rule of evidence is that nobody seems to have very clear idea what it is. Although the exclusionary rule is widely considered a hallmark of Anglo-American criminal evidence, courts and scholars have not formulated a universal definition of the rule. My definition is “a rule that excludes evidence obtained by illegal or unfair methods,” for example, by illegal search or torture. This research argues that the whole point of the rule is to regulate the intrusions and thus constrain every species of arbitrary or oppressive government. Historically,²⁰ there are at least three differences of the exclusionary rule between the two criminal justice systems.

First, the English judges seemed reluctant to exclude illegal evidence from 1978.

From the 1960s, English courts have increa...