Title: Should It Take A Thief?: Rethinking the Admission of Illegally Obtained Evidence in Civil Cases
Abstract: Justice must manifestly be seen to be done.1 I. INTRODUCTION Traditionally, courts have admitted evidence in civil cases without regard for the manner by which it was obtained by the proponent.2 Neither unlawful acts nor invasions of privacy have been considerations in judicial determinations of admission into evidence. Only in certain limited areas have legislatures acted to protect individual privacy through prohibition against the interception3 and introduction into evidence of electronic communications.4 Nevertheless, a body of law or, perhaps more aptly stated, bodies of laws, have developed in criminal cases excluding evidence because of the manner in which it is obtained. Most notable is what is generically known as the rule. It enforces the Fourth Amendment's guarantee of [t]he right of the people to be secure . . . against unreasonable searches and seizures5 by excluding from admission into evidence in federal and state criminal prosecutions that which is obtained in violation thereof by unlawful governmental action.6 Although the exclusionary rule based on Fourth Amendment protection is perhaps the most commonly known, courts also exclude relevant evidence based on other constitutional protections, such as confessions given involuntarily7 and statements made when a proper Miranda warning has not been given.8 However, these exclusionary rules are limited to governmental actors and therefore are not considered applicable to civil actions9 nor to criminal prosecutions in which the offered evidence has been unlawfully obtained by a private person.10 The judicially developed exclusionary rule initially had two separate goals. One was to enforce the Fourth Amendment through deterrence of illegal governmental action.11 The other was to preserve judicial integrity by not allowing illegally obtained evidence as an exercise of the supervisory powers of the Supreme Court.12 As the Court considered issues such as whether the exclusionary rule was applicable to state prosecutions, the basis of and rationale for the exclusionary rule became increasingly important. A rule based upon supervisory powers would have no application upon the states, while a rule based on the Fourth Amendment would be applicable to the states by way of the Fourteenth Amendment.13 Consequently, deterrence based on the Fourth Amendment became settled upon as the basis for the rule, thereby allowing enforcement upon the states.14 As a result, the importance of exclusion as a means to preserve judicial integrity faded. At the same time that the exclusionary rule applicable to criminal prosecutions was developing, courts hearing civil cases also were considering whether illegally obtained evidence should be excluded. The majority of courts rejected exclusion in favor of the traditional rule of admitting evidence without consideration of its source.15 A handful, however, did find that the illegality of the proponent's actions warranted exclusion, but the legal bases for such rulings were often ill-defined or not well articulated.16 While the exclusionary rule based on the Fourth Amendment was held inapplicable to civil cases involving unlawful actions of private parties,17 exclusion for purposes of preserving judicial integrity was lost in the shuffle and not fully considered.18 Therefore, it continues to be the position of courts hearing civil actions to allow the admission of evidence that has been illegally obtained by the proponent.19 This Article reexamines the matter from its inception, largely in the context of adultery-based divorce actions, to the present day widespread application. It argues that two changes in litigation and society warrant reexamination of the doctrine. The first is that the present broad scope of civil discovery obviates the need to resort to illegally obtained evidence to aid the search for the truth. The second is a change in how society views the equities of certain situations in which illegally obtained evidence would be offered. …
Publication Year: 2003
Publication Date: 2003-07-01
Language: en
Type: article
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