Report No. 94
10.11. Collateral inquiry.-
The most important argument1 against the introduction of an exclusionary rule in any form, is the objection to a collateral inquiry. It is argued that the application of such a rule involves, in a criminal trial, a collateral inquiry which may delay the trial and distract the court. To put the same argument in a different form, the method by which the evidence is obtained is stated to be a collateral issue, and not the central issue of inquiry before the court. A court is concerned with a resolution of the facts in issue and should therefore refuse to hear arguments that might draw it into regions far removed from the central issues under inquiry.
The argument was lucidly put in an American ruling, pronounced at a time when the exclusionary rule had not yet established itself in that country. "We think such testimony (illegally obtained) is admissible. It is not the policy of the courts, nor is it practicable; to pause in the trial of a cause, and open up a collateral inquiry upon the question of whether a wrong has been committed in obtaining the information which a witness possesses".2
1. Para. 10.10(i), supra.
2. Cluett v. Bosenthal, (1894) 100 Mich 193: 53 NW 1009 (1010).