Inclusionary rule v. Exclusionary rule

The inclusionary rule - Def

Every piece of evidence is considered admissible no matter how it is obtained, as long as it is relevant.

The inclusionary rule - Arguments for

• If it is relevant the jury should hear it! 

• Makes it harder for guilty people to get away. 

People (AG) v. O’Brien (1964)

Ireland went from adopting the inclusionary rule to adopting the exclusionary rule

• Mr. O’Brien was accused of having committed robbery. A search warrant on his home was issued and the police found incriminating evidence. It was later discovered that the address on the warrant was wrong (Cashel road instead of Captain’s road)

• At the trial, O’Brien argued that the evidence found in his house was obtained unlawfully and should be excluded at trial. (The court agreed)

• The court came up with the test for determine whether a piece of evidence have been unconstitutionally obtained

Arguments for the exclusionary rule

• It is better that a guilty person espapes punishment than that a court of justice should put aside a vital fundamental principle of law in order to secure his conviction 

• Protecting the reputation and integrity of the criminal justice system 

  • Nothing can destroy a government more quickly than its failure to observe its own laws.

• Deterrence principle

• Vindication principle

Deterrence principle

• To deter law enforcement from violating constitutional rights/the law when gathering evidence. (Byrne v. Ireland)

  • The primary purpose of the exclusionary rule 

Vindication principle

The courts are required to protect the constitutional rights of an accused from violation. Therefore, if their rights have been broken during the criminal investigation, the courts are required to vindicate (försvara) those rights by providing the accused with an effective remedy, i.e. the exclusion of the evidence obtained as a result of that violation. 

The scope of the exclusionary rule

The exclusionary rule applies only to evidence sought to be adduced at the trial! 

• Does not apply to the information/the evidence that first created the initial suspicion in the minds of the Gardaí.