ARTICLE: THE ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE: AMERICAN AND FOREIGN APPROACHES COMPARED. * Skip over navigation
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Military Law Review

ARTICLE: THE ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE: AMERICAN AND FOREIGN APPROACHES COMPARED. *



* The opinions and conclusions expressed in this article are those of the author and do not necessarily reflect the views of The Judge Advocate General's School, the Department of the Army, or any other governmental agency. This article is based upon a paper submitted in partial satisfaction of the requirements of the LL.M. program of the University of Virginia and will form the basis for a chapter in K. Redden (ed.), Modern Legal Systems (1983).

Summer, 1983

101 Mil. L. Rev. 83

Author

Captain Stephen J. Kaczynski **

Excerpt

I. INTRODUCTION

The American exclusionary rule is nearly a septugenarian. Born in 1914, 1 the rule that excludes illegally obtained, yet relevant and probative, evidence from admission at a criminal trial has been much criticized and occasionally limited, yet it remains today the law of the land. An attempt to judicially modify the exclusionary rule was recently avoided by the United States Supreme Court, 2 but may well yet receive the Court's approval. 3 Pending such modification, both federal and state courts are bound to refuse to admit into evidence any items or information discovered as a direct result of a violation of the constitutional rights of an accused. This article will study the American exclusionary rule as it relates to evidence obtained in violation of various constitutional provisions and compare the rule to the manner in which the legal systems of other nations, both of common and civil law foundations, deal with illegally obtained evidence.

II. THE AMERICAN RULE: THE FOURTH AMENDMENT

Among the fundamental guarantees the violation of which may cause relevant and probative evidence to be excluded from a criminal trial is the Fourth Amendment to the U.S. Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things ...
 
 
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