A Comparative Study of the Exclusionary Rule and Its Standing Threshold in Canada, the United States, and New York State: The Relation of Purpose to Practice

PAUL DENIS GODIN

ABSTRACT

The author argues that the evidentiary exclusion rule should be firmly grounded in principles that coherently guide its development. This rule is compared across three jurisdictions, revealing a complex interplay of purposes which define the boundaries of the rule: deterring police misconduct; remedying the violation of constitutional rights; maintaining judicial integrity; and maintaining the integrity of the justice system as a whole. Problems in the development of the rule result from shifting views of its dominant purpose, and from the tensions between these views. Case law within each jurisdiction exhibits this tension, but nevertheless is generally consistent with the accepted purpose of the rule. The author suggests that differences between jurisdictions represent, in part, differences in their approaches to rights.

Contradictions remain, however, between the purpose and practice of the rule. Primarily, the narrow rule of standing is inconsistent with the principles underlying the exclusionary rule, regardless of the accepted purpose. The author advances a model to reconcile thresholds for standing with the purpose of the exclusionary rule. Finally, the ambiguity as to which factors affect the fairness of the trial, and why, must be resolved, as these considerations play a central role in the development of the exclusionary rule in Canada.

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Citation: (1995) 53(1) U.T. Fac. L. Rev. 49.
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