Why can courts refuse evidence? The question Layman here. This question was inspired by this question and random things I've heard/read over the years. I'm quite confused by a concept that comes up again and again and which people seem to hold for self-evident. And that concept is that there is some evidence which a court will refuse to admit. And that confuses be because... well, there's evidence. It leads to the truth. Why aren't you taking it?! It's very easy to come up with realistic examples where: There is a piece of evidence which is clearly and irrefutably shows that a person did something very bad (say, murder) This evidence is for whatever reason &quot;not admissible&quot; (say, it was obtained illegally) And there is no other piece of evidence that would incriminate this person. Does that mean that the perpetrator gets to go free? How can the court refuse to admit evidence, especially if it's the only useful evidence existing? And if yes, then why is this so and where is this practice useful? Some examples from the top of my head The example question above deals with unlawful searches. Imagine that a police officer decided to search a car (or an apartment) and forcefully did so against the protests of the owner (or maybe the owner wasn't even present). They thought they might find drugs or something, but instead they are surprised to discover a dead body, clearly murdered. So... now what? According to the above question, since the search was illegal, this is inadmissible evidence in the court. Does that mean that the owner of the car/apartment gets to go away scott-free? Do they launch a new investigation and try to find other evidence except the fact that it was inside the property of this guy here (and failing to do that, release them)? If the owner of the car/apartment says &quot;I don't know what you're talking about, I last saw Jimmy here alive and well at the pub last night; I never seen his corpse before.&quot; - can they call him out on the obvious lie? Or, another example. I don't know about USA, but here in Europe it's illegal to record someone's phone calls without a warrant (or something like that; it's serious). Any recordings obtained unlawfully will be inadmissible as evidence. Let's now imagine that I've gone the full extra mile and have secretly bugged everything in my neighbour's house because I suspect (but have no evidence) that they murdered my child last month. I've got hidden cameras, microphones everywhere, etc. So one day I catch him talking to his spouse on the phone and mentioning the murder, admitting to doing it, and even telling where he buried the body. Now I have evidence... or do I? I give the recording to the police, they search the indicated place and they do find the body, but since they cannot accept my recording as evidence... does that mean that my neighbour now has no consequences? Let's also suppose that no other evidence is found that would indicate his guilt (the guy was thorough). Obviously I'd get some grief for bugging my neighbour's house, but do I now also become the prime suspect in the murder of my own child? After all - the recording of my neighbour's confession &quot;officially doesn't exist&quot;, and I'm the one who told the police where to dig, so...
Different exclusionary rules have different reasons. Hearsay is frequently inadmissible because it's less reliable for the court to hear Alice saying &quot;Bob told me that Carol hit him&quot; than to hear Bob saying &quot;Carol hit me.&quot; Another even more critical problem with hearsay testimony is that the defense cannot cross examine the person who made the statement in court. If Bob is there, the defense can ask questions such as &quot;where did Carol hit you&quot; and &quot;did Carol use her right or left hand&quot; to clarify the testimony or call its veracity into question. Alice, not having been a direct witness to the act, will not be able to respond to many of these questions. united-states Evidence obtained in violation of a constitutional right is inadmissible because admitting it amounts to allowing police or prosecutors to violate people's constitutional rights in order to obtain convictions. Not only does an unconstitutional search itself violate the rights of the person being searched, but so does the use of evidence acquired in such a search. See Fruit of the poisonous tree at Wikipedia and the cases linked therein, especially Silverthorne Lumber Co. v. United States and Nardone v. United States.
The wording is a little confusing, but I interpret it as saying the following: Normally, discovery in a court case allows either party to demand documents from the other, to be used as evidence. However, our courts have exceptions; certain documents might be 'privileged against discovery', meaning they couldn't be demanded in that way. If one of those exceptions would apply to a document under court rules, then you can't request it under Freedom of Access either. To know what those privileges are, and how broadly they apply, you'll have to consult the rules of court procedure for your state.
Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956.
I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality.
An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction.
So far as I am aware, all jurisdictions provide some kind of defence to the offence of possessing child pornography (or, for that matter, other illegal items like drugs and weapons) for legal purposes. This is necessary at least for police and others involved in the criminal justice system – if not, it would be difficult to seize the material and admit it in evidence if the defendant pleads not guilty. In the United Kingdom, it is a defence to prove that you possessed the material for a ‘legitimate reason,’ which is not defined. Note that this is a legal burden, meaning that the defendant must affirmatively prove the existence of a legitimate reason on the balance of probabilities, rather than merely raising reasonable doubt. See the Crown Prosecution Service’s guidance on Indecent and Prohibited Images of Children, under the ‘Statutory Defences’ section: The defence is made out if the defendant proves that he had a legitimate reason for the conduct in question. This is a legal rather than an evidential burden (R v Collier [2005] 1 Cr. App. R. 9). “Legitimate reason” is not defined in either Act. In Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248 it was held that it is a pure question of fact in each case. In cases where it was maintained that the conduct was part of legitimate research, the central question will be whether the defendant was essentially a person with an unhealthy interest in indecent images acting under the pretence of undertaking research or, on the other hand, was a genuine researcher who had no alternative but to have such unpleasant material in his possession. The judgment continued to say that the courts “are plainly entitled to bring a measure of scepticism to bear upon such an enquiry; they should not too readily accept that the defence is made out.” Relevant statutory provisions The ‘legitimate reason’ defence is set out in s 1(4)(a) of the Protection of Children Act 1978 and s 160(2)(a) of the Criminal Justice Act 1988. The relevant provision depends on which Act the offence was charged under; the CPS guidance has a section on ‘Which Offence Should be Charged’ for more on this. In response to the comment below, s 63 of the Criminal Justice and Immigration Act 2008 creates a separate offence of possession of extreme pornographic images. Like the child pornography offences, there is a ‘legitimate reason’ defence – see s 65(2)(a) of the Act. Commentary is available in the CPS guidance on Possession of Extreme Pornographic Images.
In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense.
This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits.