NCJ Number
95790
Journal
Military Law Review Volume: 93 Dated: (Summer 1981) Pages: 58-80
Date Published
1981
Length
23 pages
Annotation
The use of the exclusionary rule in State, Federal, and military courts is considered, and Israel's use of the rule is contrasted with the United States' use of it.
Abstract
The exclusionary rule is not essential, vital, or indispensable under the Constitution; the rule is fashioned by the courts to deal with ad hoc problems which arise from police misbehavior and illegal government activity during an investigation. Chief Justice Warren E. Burger, in his article, 'Who Will Watch the Watchman?,' rejects the contention that the rule is a deterrent, arguing that the extent to which courts continue to invoke the rule in case after case suggests that those who are supposed to be deterred have not yet 'gotten the message.' A review of several military legal cases shows the military's expanded use of the exclusionary rule not only in these cases but also in the new Military Rules of Evidence. In Israel, the general rule is that relevant and authentic physical evidence, even though achieved by unlawful means, is admissible for consideration by a criminal trial court. The Israeli Supreme Court's decision in Meiry v. The State of Israel is consistent with the traditionally negative attitude of Israeli law toward the exclusionary rule. In this case, the Court intentionally ignored the exclusionary rule. Arguments for U.S. courts and legislatures to abandon the exclusionary rule are presented. Sixty-six references are included.