Exclusionary Rules—Is It Time for Change?

Abstract

This chapter explores whether exclusionary rules serve as efficient tools to streamline criminal procedure in a way that safeguards the rights of an accused or whether they exist merely as law on the books with limited actual utility. Relevant benchmarks for the evaluation of exclusionary rules are discussed, in addition to their structure. The question of which characteristics of exclusionary rules optimize the protection of procedural rights is analyzed along with other options to prevent violations. Possible alternatives to exclusionary rules are suggested to help answer the question: Is it time for a change? 1 Exclusionary Rules-Efficient Tools or Illusory Giants (紙老虎)? Exclusionary rules have long been a topic of interest for legal scholars and the subject of comprehensive study in law journals and textbooks. 1 The concept originated in common law and was later adopted by civil law and so-called mixed systems and, most recently, in China. 2 In the Western world, exclusionary rules are featured in flashy criminal cases, detective novels, and movies.

Exclusão de provas ilícitas e a integridade dos procedimento

“…Por outro lado, a efetiva punição de crimes também compõe a reputação/integridade do sistema de justiça, então a exclusão de provas confiáveis é indesejável para qualquer corte (Gless & Macula, 2019). Daí surge uma tensão entre a proteção dos direitos do acusado e o efetivo julgamento de crimes, cuja resolução depende do balanceamento entre fatores favoráveis e contrários à admissão de provas.…”

The Presumption of Innocence as a Source for Universal Rules on Digital Evidence — The guiding principle for digital forensics in producing digital evidence for criminal investigations

“…Rapid technology development and dynamics in DF hinder strict exclusion or formal expert requirements in favour of reliability testing standards. Firstly, exclusionary rules are criticized as an inadequate method to scrutinize technical evidence, 63 especially in a domain like DF where scientific and non-scientific expertise is merged. Even if exclusionary rules are introduced in the legal system, the admissibility of DF examiner report must be based on evaluation criteria for its relevance and reliability to the fact at issue.…”