Should It Take A Thief?: Rethinking the Admission of Illegally Obtained Evidence in Civil Cases
Taylor, David H.
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This article explores excluding evidence in civil cases. Part I introduces the article’s premise that civil courts should rethink the admission of illegally obtained evidence in civil cases. The article asserts that the present broad scope of civil discovery negates the need for illegally obtained evidence and society is less tolerant of the idea that illegally obtained evidence is necessary to expose a party’s wrongdoing. The article explores this premise through the lens of divorce cases. Part II examines the traditional doctrine behind admitting illegally obtained evidence and then discusses why this doctrine should be revisited. Part III provides three case examples to illustrate the author’s point about illegally obtained evidence. Part IV considers the notion that if times have changed, then so a should a rule that was developed in another time. Part V explores the development of the exclusionary rule and its ever evolving basis. Part VI discusses excluding evidence pursuant to supervisory powers in order to preserve judicial integrity. Part VII looks at balancing exclusion against the search for truth. Part VIII discusses the use of supervisor power to preserve judicial integrity in civil cases. Part IX explores excluding exclusion from civil actions. Part X discusses limited legislative action. Finally, Part XI revisits the question as to whether changed times warrant a changed view.