To Admit Or Not To Admit? – The Conundrum Around Illegally Obtained Evidence: A Comparative Study

To Admit Or Not To Admit? – The Conundrum Around Illegally Obtained Evidence: A Comparative Study Of The United States Of America, Australia And India

Anushka Borkar, B.A., LL.B. (Hons.), National Academy of Legal Studies and Research (NALSAR, Hyderabad)

ABSTRACT

At times, preserving the judicial integrity and achieving a factually correct outcome appear diametrically opposed objectives, raising a pertinent question - “Does the end justify the means?” This dilemma is particularly manifest when a party to a dispute produces a document obtained by illegal means, through wiretapping or hacking or through illegal search and seizure or any other method. While the exclusion of illegally obtained evidence is advocated to protect individual rights and reinforce judicial integrity; the Court is often criticised for its excessive desire to be factually correct as opposed to serving the purpose of justice. The recent past has been mired in this conundrum, which raises a pertinent question as to the admissibility of such evidence in the courtroom. In India, there is a deep lacuna, especially after the recognition of the right to privacy as a fundamental right, which is in direct conflict to the production of illegally obtained evidence. There has been a marked increase in parties seeking to adduce evidence that has been obtained illegally. The paper seeks to explore the admissibility of illegally obtained evidence in criminal proceedings in the United States, Australia and India by presenting a comparative analysis of the position in each of these countries.