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Exclusion of improperly obtained evidence

  • July 23rd, 2008

The Police Association’s policy wish list did not include reform to protect the victim’s right to seeing a guilty person pay the price for crime, from this court-invented remedy for police misconduct.

The NY Times reports on moves at Supreme Court level to limit this rule in the US, home of its most extreme version.

The mechanism subordinates the public interest in seeing justice done, to our interest in deterring police misconduct. I’ve not come across any analysis to show that the Court’s exclusion power is the only, or the most efficient way, to discourage such misconduct.

For example, an alternative approach might give the Courts explicit power to follow up evidence of misconduct in a separate process.  There may be comparative evidence from around the world that would give a steer on these issues.


  • Jim Maclean
  • July 23rd, 2008
  • 11:07 am

Some time ago NZ followed liberal elements in the US Justice system into this folly. A system which deliberately ignored concrete facts in the intersts of “punishing” Police for accidentally or deliberately breaking rules. It is long past time we got back to the commonsense ability to talk about the elephant in the room, when it is in plain sight.
Police can be prosecuted for misconduct! Those who hate or mistrust them will never be satisfied with the results, but better they are discontent that the original victim is victimised again by watching a guilty man walk free. In Poker, Hoyle says that the cards speak for themselves when shown. I couldn’t put it better myself.
There is a growing anger among the general population that legal processes treat the general public as idiots who are not capable of logical thought. However unsophisticated we may be, we still know that if it walks like a duck, quacks like a duck and looks like a duck it is unlikely to be an elephant.


I’m interested – you don’t want exclusion of evidence for breaches of the Bill of Rights Act, and you don’t want (if I recall correctly) financial compensation for breaches of the Bill of Rights. What else is there?

The NY Times article to which you link states:

“As far as we know,” Justice Scalia wrote for the court, “civil liability is an effective deterrent.”

Are you proposing that as the alternative?

  • Jan (GER)
  • July 24th, 2008
  • 12:10 am

For a summary of the position in Germany (no strict exclusionary rule) see:

and generally

  • Jack
  • July 24th, 2008
  • 10:13 am

50% of all charged persons are ultimately aquitted, most cops who have been exposed in Court as being corrupt are never even charged.

  • Chuck Bird
  • July 24th, 2008
  • 11:20 am

I think we need to look at more than just the court case in question. If the police can obtain evidence by torture which results in a conviction in a murder or P case and the police just get told off by the judge one might say what does it matter if some scumbag get ruffed up a bit.

However,this can affect innocent people in the next case. There needs to be balance. A guilty person should not walk because the police failed to dot all the “I”s and cross all the “T”s. But allowing a guilty person to go free when the police blatantly break the rules is the price we should be prepared to pay to live in a free society.

  • F E Smith
  • July 24th, 2008
  • 4:57 pm

Jack, I would like to know where you got your 50% figure from, as I certainly don’t see it in the area that I practice in.

But your second statement is correct and is one that needs to be followed up on.

Stephen, you make the comment that ‘an alternative approach might give the Courts explicit power to follow up evidence of misconduct in a separate process’ but you miss the fact that they already do have such a process (by passing it on for either criminal or disciplinary charges) but THEY DON’T USE IT.

I have seen and heard of numerous instances of misconduct by police officers both in and out of court, from perjury to attempted blackmail to serious assaults to breaching of name suppression orders etc etc. This comment would go into tomorrow if I was to list them all.

One recent example: a colleague tendered to the court almost irrefutable evidence that a document a police officer had introduced as evidence had been doctored by that police officer. When the judge realised the effect of allowing that new evidence in (i.e. it would provide very strong evidence of perjury) the judge refused to allow it in as an exhibit. Nothing came of it.

Perhaps another one: when it became obvious in a case that a police officer had added a confession to a statement after the interview the judge didn’t do anything, simply acquitted the defendant and left it at that.

Often when there is some form of doctored evidence and the officer involved has not been to careful with it, the prosecutor will pick up on it and quietly withdraw the case. Or if it becomes obvious that the defendant received a beating from the police then the same thing will happen. And so on and so forth.

While thankfully these are not commonplace actions, they are regular enough to not surprise the defence bar any more.

The courts in New Zealand do not like excluding evidence in order to punish the police, and in summary jurisdiction it is a pretty rare event. And that is where 90% of our cases are heard. Most people plead guilty, anyway, so the numbers of people who would get off even if we do manage to prove police misconduct (and we do have to prove it to a very high standard for it to be accepted by the judiciary)would be so small that the current situation is not worth changing.

And don’t remind me of the Independent Police Conduct Authority- it remains for the most part cops investigating cops and therefore is mostly toothless.

Of course, it depends on whether you think that it is so important to have people held accountable for criminal behaviour that it is acceptable to excuse police misconduct of any sort. Because we cannot expect, in this country, the judiciary to do anything about it.

  • Jack
  • July 24th, 2008
  • 5:55 pm

I don’t remember the who said that 50% thing fe but it was someone of note otherwise I wouldn’t repeat it. I myself proved in Court that a cop had given false evidence against me under oath, the cop went white but the judge said nothing. Previous to the hearing my lawyer said, “They’ve got you, you might as well plead guilty.” The judge must have seen the cop go white because he aquitted me.(I was actually innocent)


I have heard the 50% figure before. I believe it was an analysis of jury trials. 50% of cases that are charged, and get past depositions and get heard by a jury and don’t get kicked before the jury deliberates result in acquittals. Something like that. Because of guilty pleas (the vast majority of cases) and withdrawn or amended charges the conviction rate overall is much higher.

  • F E Smith
  • July 24th, 2008
  • 9:10 pm

The Crown in my area considers itself as not doing very well when its success ratio slips below 75%. Of course, trials make up a very small amount of the defended hearings so they really are not representative of the justice system as a whole.

That said, I would take a jury any day over judge alone! I am certain you have a better chance of acquittal in trial court than in summary jurisdiction.

I think that guilty pleas make up something close to 90% of resolved cases, although I have seen more than a few people with credible defences decide to plead guilty when they hear how much it will cost them to do so.

While I may have said a little too much in my comment above, I am a long way from having confidence in our justice system to regulate police misconduct at all. If we then say to the police that they can act as they please and any evidence they get can still be used, then they will happily abide by that safe in the knowledge that they usually don’t face sanctions from their employer for they way they conduct cases.

  • Jack
  • July 25th, 2008
  • 12:14 am

You’re not wrong about choosing a jury trial rather than a judge alone FE. The judge that ran my jury trial (Lang) wanted to convict me for sure. One of the prison officers flanking me said to me during the judges summing up “He doesn’t like you Jack”
There’s a transcript of the trial @ Note how the Police “lost” the tape recording of my 111 call for Police help. The bastards did away with the one bit of hard evidence that proved that I acted in self defence.

  • Michelle
  • October 28th, 2008
  • 11:42 am

We are going through matters at the moment where the cop lied in court. Unluckily for her, we had taped the interview, presented it after my partner managed to get a conviction thanks to her testimony, won the Court Of Appeal and are now seeking compensation. Have just scoured her evidence for what seems like the hundreth time as it was niggling me and in front of my nose all the time was a blatant act – like to see the Police explain that one. Your comments are correct. If explanations have flaws – the public is lying, if a cop does it – they have made an error.

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