Arguments Against Exclusionary Rule

(I) ‘A majority of the Group is of the view that the current exclusionary rule is too strictly calibrated, and would wish to see a situation develop where the court would have a discretion to admit the evidence or not, having regard to the totality of the circumstances and in particular the rights of the victim’ (Balance in the Criminal Law Review Group, 2007: 161).

Discuss the above statement, giving your view as to the opinion expressed. Your argument should be grounded in the case law, legislation, literature and relevant constitutional provisions.
Introduction
The exclusionary rule is both a hotly debated and contentious issue and over the course of this essay I am hoping to outline just why this is the case. Subsequent to that I’m hoping …show more content…
With regard to admissible evidence where me must start is with the core principle which is in effect, in order for evidence to be valid it has to be first and foremost relevant to the guilt or innocence of the defendant, and in the majority of cases this is clearly met. However where the problems begin to occur with what constitutes relevant and admissible evidence is when the evidence becomes both relevant and prejudicial to the defendant and in such cases it then becomes a requirement of the prosecution to prove that the evidence is more probative than prejudicial. In order for the prosecution to prove this they usually follow a certain voir dire procedure. This procedure can often be seen in cases where the question of ‘misconduct evidence’ is raised. The prosecution will often argue that the previous misconduct of the defendant follows a reoccurring system of behaviour which should be deemed probative, and on the contrary the defence will look to argue that such evidence does not show such a system and is more prejudicial than probative. Subsequent to this in most voir dire arguments that find themselves before a judge the following process must be …show more content…
This can be seen in examples where a Garda member authorising a detention did not have the necessary belief, to ground a statutory power of detention, or where a detention overran its time limit and An Garda Síochána members failed to get a proper extension as required under Irish law. The detention must be legal in order for any evidence such as a confession or DNA sample to be deemed admissible. However we know that there is a distinction as to whether an illegality or breach of constitutional rights has occurred. The former is a much less serious breach than the latter and the provisions in excluding evidence are generally subject to that. For instance certain detentions may be severable under Irish law, in that such detention may have begun illegal and gone on to fall into illegality and admissions of guilt made by an the accused prior to that illegality occurring may therefore be admissible at trial. In DPP v Glen Creed the court found that based on the facts there was no deliberate and conscious breach of the constitutional rights of the detainee, and the detention was therefore not unlawful. It was reported that it was a matter of discretion for the judge to rule as to whether any particular evidence obtained should be granted as admissible. The Court rule that the hair samples

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