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Report No. 94

10.3. Difficulty of determining the deterrent effect.-

Students of criminology are aware that it is difficult to assess with reasonable accuracy the deterrent effect of any legal sanction. How far any legal prescription adequately deters illegal conduct in a particular area of human activity regulated by law is mostly a matter of opinion. Because of this general position (which applies to evidence gathered illegally also), the question whether the introduction of a rule or discretion of exclusion of evidence adequately deters illegal conduct in the collection of evidence will always remain a matter of opinion. Material enabling the formation of an objective conclusion on the point is not always available. At the same time, the adoption of a rule or discretion of exclusion might, prima facie, remove the incentive to break the law for the purpose of obtaining evidence.

Deterrence has been the principal basis of criminal sanctions, and there should be a presumption in favour of the effectiveness of judicially enforceable sanctions against attempts to procure evidence illegally obtained. It appears that the studied1 conducted in the U.S.A. for the purpose of testing the deterrent effect of the exclusionary rule have remained inconclusive, and are likely to be so. "The issues are not susceptible of quantitative solution," according to Mr. Justice Frankfurter.2 This, in fact, may be true of many other laws imposing criminal sanctions. Were the proponents of every such law required the demonstrate a specific deterrent effect, one suspects that a great deal of our law might have to be striken from the books.3

There is another aspect of the matter that needs to be mentioned. The operation of a rule excluding evidence obtained illegally may obstruct the process of seeking the truth. In individual cases, the guilty may even go free. The question is, whether such cases will be no large in number as to prevent any move for a change in the law, if the change is otherwise required in the interests of justice.

1. J.B. Dawson Exclusion of Unlawfully Obtained Evidence, (July 1982) 31 la, 513, 520, 321, 522.

2. Ho/f v. Colorado, (1949) 338 US 26 (28).

3. J.B. Dawson Exclusion of Unlawfully Obtained Evidence, (July 1982) 31 ICLQ 513, 520, 522.

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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