Illegally Obtained Evidence in Criminal and Civil Cases: A Comparative Study of a Classic Mismatch
![handle is hein.journals/tlr51 and id is 1347 raw text is: Illegally Obtained Evidence in Criminal and Civil
Cases: A Comparative Study of a Classic Mismatch
Hans W. Baade*
It is true that the function of the Court is to ascertain the
truth in the disputed issues of fact which go to proof. But
the effect, and indeed the purpose, of the law of confidentiality
is to prevent the Court from ascertaining the truth so far as
regards those matters which the law holds to be confidential.
Lord Reid**
Society has a vital stake in the prevention of crime, and until
it develops better and more humane methods, the threat of punishment
will remain one of the most important tools for the control of poten-
tially criminal conduct. In order to be credible, deterrence requires
a substantial number of prosecutions and convictions. In a free so-
ciety, however, effective law enforcement will be acceptable only if it
is evenhanded. In other words, the public has a strong interest in
the diligent prosecution of all persons accused of serious crimes.' If
an accused is acquitted solely because a criminal court excludes illegally
obtained evidence, this important public policy is thwarted. Conse-
quently, a rule calling for the exclusion of that evidence must rest on
the conclusion that other policies, such as the right of privacy, the
discouragement of official lawlessness, or the integrity of the judicial
process, are more important than rigorous enforcement of criminal law.
Society has little direct concern, however, in the actual outcome
of individual lawsuits between private parties. Public interests, of
course, are not vindicated only in actions to which the government
is a party. The prospect of civil liability is an effective public sanction,
and in a more complex manner, the prospect of adverse adjudication
in suits to determine status likewise serves as a deterrent. But in pri-
vate litigation, defendants have rights and defenses, such as concurrent
* Albert Sidney Burleson Professor of Law, University of Texas. A.B. 1949,
Syracuse University; DR. IUR. 1951, University of Kiel; LL.B., LL.M. 1955, Duke Uni-
versity; Diploma, 1956, The Hague Academy of International Law. This article is the
first part of a two part series dealing with the admissibility of illegally obtained evi-
dence in civil and criminal cases.
** Argyll v. Argyll, [1962] Sess. Cas. 88, 93 (H.L.).
1. Cf. Andenaes, The Morality of Deterrence, 37 U. Cm. L. Rv. 649 (1970).
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Illegally Obtained Evidence in Criminal and Civil Cases: A Comparative Study of a Classic Mismatch
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