dissenting 1971) and criticized as irrational because ‘‘no civilized nation in the world has adopted it’’
Historically, in both common and civil law traditions there were rules against admission of
coerced confessions. But the rule governing admissibility of physical evidence was one of relevancy.
The English common law knew no notion of excluding probative evidence. Relevant evidence was
admissible regardless of the manner in which it was obtained (Williams, 1955; Zuckerman, 1989).
On the European continent, despite the existence of isolated cases in which evidence obtained as a
result of official lawlessness was excluded there was no established practice of excluding relevant
evidence based on any clearly articulated rationale (Pakter, 1985). The past several decades have
seen significant changes in the criminal justice landscape on the world scene. With the rise of indi-
vidual rights as a proper subject of international law, there has been a global trend in the direction of
providing more protections to the accused.
Amid these developments, more and more countries have adopted the exclusionary rule aimed at
excluding evidence obtained as a result of official lawlessness. Today, the exclusionary rule exists in
England and Wales, France, Germany, Italy, Canada, Australia, and even in China and Russia
(Amann, 2000; Bradley, 1983, 1993, 2007; Cho, 1999, 2001; Hatchard, Huber, & Vogler 1996; Jaini
& Noyes, 2001; Lewis, 2011; Orland, 2002).
The exclusionary rule though is no longer an American novelty, the American rule is still unique
because of its mandatorynature and deterrence rationale. In Mapp, the SupremeCourt justified the rule
on several grounds. In subsequent years, the Court has justified the rule exclusively on its deterrent
effect. Moreover, except for situations coveredby exceptions carved out by the Court,the rule requires
automatic exclusion of all illegally obtained evidence. By contrast, no other countries have adopted a
generallyapplicable mandatoryrule or rested the rule on its effectas a deterrentagainst police illegality.
While the debate over the exclusionary rule never abates, two recent Supreme Court decisions
have triggered a new storm of controversy. In Hudson v. Michigan (2006), the Court rejected the
application of the exclusionary rule to police violation of the knock-and-announce rule and declared
that suppression of evidence ‘‘has always been our last resort, not our first impulse’’ (Hudson, p.
591). In Herring v. United States (2009), the Court extended the good faith doctrine to cover illegal
searches by police in reliance on a record-keeping error committed by another police employee. The
Court reasoned that to trigger the exclusionary rule, ‘‘police conduct must be sufficiently deliberate
that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system’’ (Herring, p. 144).
Hudson and Herring are controversial not only because the two decisions further constricted the
domain of the exclusionary rule but also because the decisions herald a significant change in the
Court’s Fourth Amendment jurisprudence. The Court’s advocacy of a police culpability-based
approach suggeststhat the Court is ready to rethink how the exclusionary rule shouldbe applied. Hud-
son and Herring are hardly the Court’s last word on the Fourth Amendment exclusionary rule. The
Court will hand down more decisions to further clarify theapproach it suggested in the two decisions.
In anticipating more debate on the exclusionary rule, it is helpful that we evaluate the rule’s
application in the United States in comparison with the operation of the exclusionary rule in other
countries. The United States has long taken a self-centered approach in the study of criminal pro-
cedure. In today’s rapidly shrinking world, it is time that we look to other countries’ experience in
contemplating our own law reform. This article provides a comparative perspective of the exclu-
sionary rule. It evaluates the American exclusionary rule in comparison with the exclusionary rule
in England, Canada, France, and Germany. The introduction of the exclusionary rule in the four
countries provides readers with an overview of the rule’s operation in countries that follow the
common and the civil law traditions. More attention will be given to the practice in England and
Canada, for the two countries’ experience stands to provide more inspirations to our exclusionary
310 International Criminal Justice Review 22(3)