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Vanderbilt Law Review

Zelman Cowen

First Page

523

Abstract

The question whether illegality in the means of procuring evidence is a bar to its admissibility has received little consideration in the English authorities. There is little authority in the reports, while most text-writers do not deal with the problem at all. Halsbury, who considers it briefly, states a rule that if property or documents have been wrongfully seized, the seizures will be excused if they are in fact material evidence of a crime committed by any person." The principal authority cited in support is Elias v. Pasmore. Archbold states a similar rule, but Phipson, who twice cites Elias v. Pasmore, does not deal directly with the point. Of the Scottish writers, Macdonald states that the fact that articles or documents may have been irregularly or even unlawfully taken from the accused person or from the custody of someone else is not a good objection to their admissibility in evidence, while Lewis is of opinion that proof of illegal seizure is no bar to the admissibility of evidence. In America, Wigmore stated in categorical terms that illegality in the method of obtaining evidence did not affect its admissibility at common law, and he strongly attacked what he regarded as an aberration on the part of certain American courts in departing from this rule. In Wolf v. Colorado, a recent decision of the Supreme Court of the United States, Frankfurter, J., in the course of delivering the majority opinion stated that "of jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible."

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