illegally obtained evidence in civil case

Matters Outside the Uniform Evidence Acts, Uniform Evidence Acts and other legislation. 2. Section 230 defines the word "statute" to include "a constitutional provision," and the comment thereto recites that "when a particular section is subject to any exceptions 'otherwise provided by statute,' exceptions provided [6 Cal. It is preceded by a complementary declaration that "No evidence is admissible except relevant evidence" (§ 350), and followed by equally broad provisions recognizing the discretion of the court to exclude evidence when its probative value is outweighed by probable prejudice (§ 352), the effect of the erroneous admission or exclusion of evidence (§§ 353, 354), the use of evidence of limited admissibility (§ 355), and the right to introduce the whole of a writing or conversation when part thereof has been offered (§ 356). Rptr. The trial court assumed this to be so, and the People do not contend otherwise. Examination and Cross-Examination of Witnesses, 8. [132], 16.83 The ALRC acknowledged the concerns expressed by Stephen and Aickin JJ in Bunning v Cross that, to treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. What happens when the police violate the United States Constitution and/or the North Carolina State Constitution and illegally obtain evidence against a criminal defendant in violation of the Constitution? In adopting the exclusionary rule, however, this court recognized that it could not be justified on that theory (People v. Cahan, 44 Cal. Subscribe to Justia's Free Summaries 2d 579, 587-588 [35 Cal. Evidence obtained improperly may, for instance, be evidence obtained in breach of the Police and Criminal Evidence Act 1984 (PACE) or where information is … Under criminal law, evidence obtained by illegal means is not permitted or cannot be used in many cases. [137] In particular, it was asked whether the factors to be taken into account in s 138(3) require clarification. 179, 463 P.2d 403], assuming arguendo the propriety of a pat-down search for weapons when a theft suspect thrust his hand into his pants pocket.)
FN 9. Let’s briefly take a look at some of these exceptions. Secondly, Martin is not, strictly speaking, an "exclusionary" rule at all, but a rule of standing. 3d 574, 583 [89 Cal. 2d 268, 275 [38 Cal. Those who infringe the law should be required to justify their actions and thus bear the onus of persuading the judge not to exclude the evidence so obtained. Is the test of substantial probative value too high? Co., 212 Cal. [1, 2] The discovery of the unidentified lump in Patterson's shirt pocket during the pat-down search did not justify further intrusion into that pocket for the purpose of self-protection, as Officer Briscoe knew the soft object was not in fact a weapon. [137] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 12–7. Rptr. FN 7. 35.) 2d 842, 845 [52 Cal. Once he is arrested, the police perform a search incident to arrest (read more about that here) and find cocaine in John’s pockets. Rep., p. (Alderman v. United States (1969) 394 U.S. 165, 171-176 [22 L. Ed. It may be readily found in standard reference works. English courts have relied on an 1861 verdict, R v Leathem, to admit evidence irrespective of the legality of the source. On cross-examination he testified it was the first time defendant had sold him narcotics, and conceded he gave the police a deliberately false description of defendant because he "didn't want to get involved at first."

1573.). No attorney-client relationship is created in this forum. 2d 434 [282 P.2d 905, 50 A.L.R.2d 513].)" 1712.) Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, and Oretta D. Sears, Deputy District Attorney, for Respondent and for Real Party in Interest. This is particularly so given that the weight to be given to any particular factors listed in s 138(3) will vary depending on which of the other factors in that subsection arise in the context of a particular case. The majority blithely assume that "the 'furtive gesture' observed by Officer [6 Cal. Rptr. at p. The twofold purpose of that rule, we explained, was to deter law enforcement officers from engaging in unconstitutional searches and [6 Cal. 16.77 Section 138(1) provides that, in civil and criminal proceedings, evidence that was obtained improperly or illegally ‘is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence’ given the manner in which it was obtained. Rptr.
[131] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [960]–[964]. 863, 386 P.2d 487].) 17.08.2010. 8, Even more importantly, the commission recognized as an obvious truth that "the code neither limits nor defines the extent of the exclusionary evidence rules contained in the California and United States Constitutions. Once this is done, the onus is on the party seeking admission to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the manner in which it was obtained;[126], s 138 applies to derivative evidence[127] and evidence of an admission;[128], s 138 is guided by a non-exhaustive list of the factors which must be taken into account in the exercise of the discretion;[129] and, s 138 applies to both civil and criminal proceedings. [142] G Bellamy, Consultation, Canberra, 8 March 2005. FN 8. For example, section 405 provides in effect that the trial judge's determination of the voluntariness of a confession is final, and the comment to that section specifies that the contrary rule of People v. Baldwin (1954) 42 Cal. Practical considerations support this approach. What evidence can defense lawyers successfully seek to suppress? Law Revision Com. But such a mandate was handed down six years later in Mapp v. Ohio (1961) 376 U.S. 643 [6 L. Ed. None of these companion sections effectuates any change whatever in the law, as the commission carefully notes in each case. It simply means that that evidence is inadmissible as evidence against the person whose rights were violated. 3d 119 [95 Cal. [T]he policy considerations supporting non-admission of the evidence suggest that, once misconduct is established, the burden should rest on the prosecution to persuade the court that the evidence should be admitted. That a person is under suspicion for a serious offence does not confer a licence to contravene laws designed to ensure fairness.[151]. at p. 34) that "The proposed Evidence Code is to a large extent a restatement of existing California statutory and decisional law. Code, § 1538.5) was denied. [144] Confidential, Submission E 31, 22 February 2005.

The dispositive question in this proceeding for writ of prohibition is whether the enactment of section 351 of the Evidence Code, declaring generally that "Except as otherwise provided by statute, all relevant evidence is admissible," operated as a legislative repeal of the "vicarious exclusionary rule" adopted by this court in People v. Martin (1955) 45 Cal. 629, 632 [68 Cal. (People v. Collins, supra.) 326, 401 P.2d 934]; In re Sterling (1965) 63 Cal. 540, 299 Pac. Once John is detained, police then start asking John questions about his illegal drug activity. Rptr. The commission was careful to point out (id. On this showing defendant was held to answer to a felony charge of selling a restricted dangerous drug. (2 Sen.J. Queensland 4003. 16.92 Although some concern is expressed with the discretionary nature of s 138, the Commissions consider that the policy basis for s 138, as expressed in ALRC 26 and ALRC 38, remains sound. Code, § 995) was likewise denied, and he seeks review of that ruling by statutory writ of prohibition (Pen. Supreme Court of California. As our opinion in Martin made plain, that rule was declared solely for the purpose of implementing the Cahan decision and for "all of the reasons that compelled us to adopt the exclusionary rule" (45 Cal.2d at p. 761). 4 Each comment summarizes the effect of the section, advises whether it restates existing law or changes it, and cites the relevant statutes or judicial decisions in either event. Let a peremptory writ of prohibition issue as prayed. [145] Victoria Police, Submission E 111, 30 September 2005. 333. While the law of standing may of course affect the admissibility of evidence in certain cases such as the present, it has a far wider scope and reaches well beyond the limited purpose of section 351. [136], 16.86 In IP 28, opinion was sought as to whether the operation of s 138 raises any concerns. It can only mean the commission did not intend%and the code therefore does not accomplish%a change in the Martin rule. In view of the commission's painstaking analysis of many evidentiary rules that are of far less importance and notoriety than Martin, its deafening silence on this point cannot be deemed the product of oversight. 1, I would also point out that, contrary to the majority's suggestion, the "pat-down" search of Patterson's outer clothing was entirely reasonable and proper under the circumstances in this case. In Bank.

Rptr. 9, [4b] We conclude that defendant has standing under the Martin rule to complain of the admittedly illegal search and seizure of Patterson. The vehicle contained three persons: defendant occupied the passenger seat on the extreme right, and seated between defendant and the driver was a 16-year-old juvenile named Patterson. It thus appears semantically inaccurate to refer to Martin as the "vicarious exclusionary rule," although the label may be retained for reasons of convenience. Privileges: Extension to Pre-Trial Matters and Client Legal Privilege, 18. 3d 156] seizures by removing their incentive to do so, fn. 3d 160] by the Constitution also are applicable."

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