Report No. 94
7.18. Case law in United States. -
Before 1914 illegally obtained evidence was always admissible in United States courts.1 The law has changed since then, through judicial construction of the Fourth, Fifth and Fourteenth Amendments to the Constitution. The American courts have held that the Fourth Amendment right to be secure from unreasonable searches and seizures can only be enforced by the sanction of excluding evidence obtained in breach of it both in state and federal courts.2 The rule extends to the "fruit of the poisonous tree", i.e. evidence obtained by using the information gained from the illegal search and seizure.3 It extends to oral evidence as well as real, e.g. statements over heard through a microphone driven into the wall of a house,4 or statements made to police during an unlawful search.5 A more spectacular recent extension is the holding that wire tapping and eavesdropping fall within "searches and seizures".6
But the American rule has limits, some quite old, others more recent. An accused cannot, invoke the rule if the evidence was obtained in breach of another's rights.7 The rule does not apply to breaches by a private individual rather than a state official.8 It does not apply to evidence put to a federal grand jury.9 It does not apply to evidence admitted only on some issue collateral to guilt, such as the accused's credibility as a witness.10 The requirements of the Fifth and Fourteenth Amendments that the federal or a state government shall not "deprive any person of life, liberty or property, with out duo process of law" may lead to the exclusion of evidence obtained by methods which "do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically", that is, methods which "shock the conscience", e.g., the forcible stomach pumping of the accused to reveal his having swallowed drugs.11 Normally evidence obtained through breaches of the law which do not infringe constitutional rights is admissible.12
1. Boyd v. United States, (1896) 116 US; Adams v. New York, (1904) 192 US 585.
2. Weeks v. United States, (1914) 232 US 383; Wolf v. Colorado, (1949) 338 US 25; Mapp v. Chia, (1961) 367 US 643.
3. Silverthorne Lumber Co. v. United States, (1926) 251 US 385.
4. Silverman v. United States, (1961) 365 US 505.
5. Wong Sun v. United States, (1963) 371 US 471.
6. Katz v. United States, (1967) 389 US 347; United States v. White, (1971) 301 US 745.
7. Alderman v. United States, (1969) 394 US 165; cf. People v. Martin, (1955) 290, p. 2d 855.
8. Burdeau v. McDowell, (1921) 256 US 465. This seems to be an anomalous survival for private persons of the "silver platter" doctrine rejected in Elkins v. United States, (1960) 364 US 206, by which evidence illegally obtained by State officials could be used in federal courts.
9. United States v. Calandra, (1974) 414 US 338.
10. Walder v. United States, (1954) 347 US 62.
11. Rochin v. California, (1952) 342 US 165 (172), per Frankfurter, J.
12. Muller v. United States, (1958) 357 US 301.