Report No. 94
10.8. Wigmore's view criticised.-
The argument has a greatly persuasive force. No doubt, Wigmore, the eminent American writer on evidence took the view that even if the court admits illegally obtained evidence, the court does not thereby condone the illegality, but merely ignores it.1 Any view expressed by this eminent jurist must command very great respect. But it appears to us that this is not an entirely satisfactory way of disposing of the matter. Even if it be assumed that the court, by admitting illegally obtained evidence, merely ignores the illegality, the court, by doing so, indirectly implicates itself in the illegality.
To this extent, the court becomes a party to a procedure which can breed disrespect for the law and for the judicial process. The law has so many rules based on the public policy (in the wider sense), whereby certain conduct is refused to be countenanced by the court on the principle that the law would not lend its aid to some serious illegality unworthy of a civilised society. The adoption of some rule of an exclusionary character would be in symmetry with legal rules of this category. An argument that seeks to keep the stream of justice unpolluted cannot be dismissed summarily.
1. Wigmore Evidence (McNaughtem Revision, 1961), Vol. 8, Article 2176.