The Admissibility of The Evidence Illegally Obtained by Private Persons – Focus on The Exclusionary Rule

Evidence is the basis of determining the fact, and the core of the criminal procedure. The Code of Criminal Procedure mainly regulates the state action, so the issue of whether or not the evidence obtained illegally by private individuals should be admissible and when the said evidence should be excluded are still disputed.
To demonstrate the drawback of judging the admissibility of the said evidence, the study initially refers to a decision made by the European Court of Human Rights. Next, the study introduces the Exclusionary Rule of Evidence and the Principle of Prohibition of Evidence, which is the basis for clarifying the question of judging the admissibility of the said evidence. Then, the thesis refers to some theories adopted by other studies concerning the complete forbiddance of using the said evidence and simultaneously elucidates the shortcoming of those theories.
After assuring that the said evidence is not prohibited under all circumstances, the thesis refers to a succession of court decisions in the U.S., displaying the necessity of the establishment of the standard of evaluating the admissibility of the said evidence. The standard of evaluating the admissibility of said evidence is divergent throughout law practice and theory. According to the range of the law discussed, the approach of the theories could be separated into two major categories: “theory concerning The Code of Criminal Procedure” and “theory concerning Constitution.” Theory concerning The Code of Criminal Procedure holds that obtainment of the evidence by private persons should be classified as part of the state action and obeys the law regulating the state, and the Theory contains four subordinate theories: “Theory of Analogizing The Code of Criminal Procedure”, “Measurement Theory”, “The Inevitable Discovery Exception”, and “Public Function Doctrine”. Each of the four subordinate theory ignores the private factor existing in the process of obtaining evidence by private persons.
The study concludes that the standard of judging the admissibility of the said evidence should be modified in accordance with the regulation or the theory of the Constitution since the process of obtaining evidence by private persons and that by state differs in many respects. Protective obligation of the state of fundamental rights should be introduced when judging the admissibility of the said evidence. The state should fulfill the protective obligation by excluding the said evidence when the private person infringes others’ “human dignity” while obtaining the evidence. The study also proposes "Three Step Doctrine" to judge whether the human dignity is infringed. In addition, the decision concerning the infringement of human dignity might differ in accordance with the fundamental rights involved, and this section shall be judged case by case.