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- Title
EXCLUSION OF EVIDENCE FOR FAILURE TO ADVISE SUSPECTS OF THE RIGHT TO COUNSEL AND TO SILENCE BEFORE CUSTODIAL POLICE INTERROGATION: COMPARING THE UNITED STATES AND CANADIAN DOCTRINES AND THE REASONS FOR THEIR DIFFERENCE IN SCOPE.
- Authors
Perigoe, Kelly
- Abstract
This comment compares the exclusion of evidence following the violation of a suspect's right to be advised of the rights to counsel and to remain silent in the United States and Canada, governed by Miranda in the United States and Charter Sections 10(b) and 7 in Canada. Identifying the key scenarios in which the US doctrine results in less exclusion than the Canadian doctrine, this comment goes on to explore how the Canadian doctrine, based on Miranda, has diverged from the very doctrine after which it was modeled. In the United States, as the Court incrementally deconstitutionalized Miranda, it also shifted its analysis of Miranda exclusion from the fairness rationale that justifies the Fifth Amendment to the twin rationales of deterrence and trustworthiness. This shift to justifying exclusion on deterrence and trustworthiness grounds allowed the Court to decline to exclude evidence in more instances--such as evidence used for impeachment purposes and derivative evidence. In Canada, on the other hand, both the right to be advised and the corresponding exclusionary rule are expressly found in the Charter, and the exclusionary doctrine places great emphasis on a rationale of trial fairness (and in fact explicitly rejects the rationale of deterrence). Under this framework, the Canadian Supreme Court has found that both impeachment evidence and derivative evidence must be excluded. Thus, it is not simply the status of the exclusionary rule as either a judicially created prophylactic rule or a core constitutional protection, but also the rationale linked to that status, that explains the respective scopes of the exclusionary doctrines in Canada and the United States.
- Subjects
UNITED States; CANADA; EXCLUSIONARY rule (Evidence); RIGHT to counsel; CUSTODIAL sentences; POLICE questioning; COMPARATIVE studies
- Publication
UCLA Journal of International Law & Foreign Affairs, 2009, Vol 14, Issue 2, p503
- ISSN
1089-2605
- Publication type
Article