The Exclusionary Rule

  1. Judicially created rule. Evidence obtained directly or indirectly through illegal government conduct is inadmissible. Weeks v. United States , 232 U.S. 383 (1914); Nardone v. United States
    , 308 U.S. 338 (1939); Mapp v. Ohio , 376 U.S. 643 (1961) (the exclusionary rule is a procedural rule that has no bearing on guilt, only on respect for “dignity” or “fairness”).
  2. Mil. R. Evid. 311(a). Evidence obtained as a result of an unlawful search or seizure made by a person acting in a government capacity is inadmissible against the accused.
  3. Violation of regulations does not mandate exclusion.
    1. Urinalysis regulations.
      (1) United States v. Pollard , 27 M.J. 376 (C.M.A. 1989). Deviation from Coast Guard urinalysis regulation did not make urine sample inadmissible.                                                                                         (2) But see United States v. Strozier , 31 M.J. 283 (C.M.A. 1990). Gross deviations from urinalysis regulation allow exclusion of positive test results.
    2. Financial privacy regulations. United States v. Wooten , 34 M.J. 141 (C.M.A. 1992). Failure to comply with federal statute and regulation requiring notice before obtaining bank records did not mandate exclusion of records.
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