Authored By: CHINWENDU SOPULU DIVINE
GRADUATE, REDEEMER’S UNIVERSITY NIGERIA
Abstract
Exclusionary rules in the law of evidence forbid the admission of particular types of evidence, even when relevant to the fact in issue. As a result, this paper provides a comparative analysis of the exclusionary laws in Nigeria, the United States, and the United Kingdom. In achieving this, a doctrinal methodology was adopted by consulting primary sources such as the Evidence Act 2011 (as amended 2023), Federal Rules of Evidence of USA (as amended), Police and Criminal Evidence Act, and secondary sources of law such as journal articles, which were subject to content analysis. The paper found that while most of Nigerian exclusionary rules are similar with the United Kingdom, there still exist some lacuna which does not protect the rights of the citizen and the Federal Rules of Evidence of the United States of America, which is not the only law guiding evidence, makes it difficult for the exclusionary rule to find expression. Conclusively, Exclusionary rules may be seen as a legal technicality. However, ten guilty persons should go free than for one innocent person to be convicted.
Keywords: Exclusionary Rules, Nigeria, United States of America, United Kingdom, Nigerian Evidence Act, Federal Rules of Evidence, and Police and Evidence Criminal Act
Introduction
The law of evidence is the body of rules and legal doctrines that govern how facts are established in a legal proceeding. These rules outline the kind of evidence that the court may or may not consider while rendering its decision. The quantity, quality, and character of the evidence required to prevail in court are also covered under the law of evidence. As a general rule, relevant evidence is admissible, while evidence deemed irrelevant is not admissible.[1] However, in some instances, some facts though are relevant to the facts in issue but are excluded for some reasons. The evidence sought to be excluded is based on several rules, which will be discussed in this paper.
Meaning of Exclusionary Rule
There are rules in the law of evidence that forbid the acceptance of particular evidence, even when that evidence is relevant to the fact that is in dispute in a case. In the law of evidence, these rules are known as admissibility rules or exclusionary rules.[2] The exclusionary rule applies to issues such as whether a confession was willingly made, if a piece of evidence was hearsay, if it was privileged, if a secondary piece of evidence from a public document was properly certified, etc.[3]
The exclusionary rule is a legal principle that was adopted from the United States Constitution, which clearly states the prohibition of the use of evidence against individual constitutional rights. In order to protect persons from unwanted searches and seizures, the Fourth Amendment of the Bill of Rights provides the exclusionary rule. The Bill of Rights makes provision for the exclusionary rule, stating that the rule was established to protect individuals from unlawful and unconstitutional interrogation, stop and search and seizures of personal properties. It created several defences against criminal prosecution from officials who obtained evidence by infringing on their constitutional rights. The rule is sometimes termed a “legal technicality” as it creates a defense whereby defendants are not to be held accountable for their actions.
Comparative Study
Hearsay Rule
It is defined as a statement, oral or written, made otherwise than by a witness in a proceeding or contained or recorded in a book, document, or any record whatever, proof of which is not admissible.[4] The Act expressly states that Hearsay evidence is not admissible in Nigeria. However, there are some exceptions to this rule under the Evidence Act, 2011.[5] The Federal Rules of Evidence of the United States of America makes an effort to define hearsay in fair detail. The definition can be summarized into a statement made by a person other than while testifying at the trial or hearing and offering the truth of the matter asserted.[6] Hearsay evidence is not admissible at trial, this is because the usual level of scrutiny is lost with hearsay evidence as the maker of the statement is not in court to be cross-examined and assessed by the Jury. In the United Kingdom, hearsay evidence is not admissible except it falls within the exceptions as provided by the law within the jurisdiction in the case of R v. Kearley,[7] where the police answered telephone calls and personal calls to the defendant’s home from people asking about drugs that the defendant had for sale.
Confessionary Rule
It is the rule that disallows confessions gained through unethical or illegal means, such as fear of discrimination, desire for advantage, or any form of oppression. Confessional testimony must be made voluntarily to be admissible.[8]
Before the Police and Criminal Evidence Act was passed in the United Kingdom, the majority of extorted confessions were valid because they were obtained by threats or promises to the suspects. However, with the promulgation of the Act, the court has barred involuntary confessions that were obtained by threats or promises and established important precedents on the confession exclusionary rule.[9] Under the United States of America Jurisdiction, Rule 402[10] provides that “Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution… Irrelevant evidence is not admissible.”[11] In the Nigerian Jurisdiction, unlike the repealed Evidence Act of 2004, voluntariness was a condition sin qua non in the admissibility of confessional statements.[12] However, under the Evidence Act, despite the numerous conditions provided in the Act, the voluntariness of confession was evaded. Even though the new Evidence Act does not specifically use the term voluntary, it is clear from the provisions of the Act that the condition sine qua non of a confessional statement remains substantially unchanged.[13]
Search and Seizure Rule
Relying on Rule 402 of the Federal Rules of Evidence, which provides that, “Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution… Irrelevant evidence is not admissible.” The Fourth Amendment guards against arbitrary searches and seizures.[14] However, how evidence was obtained and its acceptability were two distinct concepts in England.[15] The position in Nigeria is similar with that of England on the search and seizure rule, i.e., evidence is admissible if it is relevant to the fact in issue, and the court should not worry about how the evidence was obtained whether lawfully or illegally as long as it is relevant to the fact in issue.[16]
Rationale for Exclusionary Rule
The basic rationale behind the exclusionary rule is to prevent officials from carrying out unconstitutional and unlawful searches and seizures and acquiring illegal confessions. It prevents officials from using most evidence acquired illegally in court or against a defendant. Officials are known for regularly tampering with evidence and hiding how the evidence was obtained, which is why the rule was put in place to discredit any use of unlawfully obtained evidence in a trial. Discouragement of law enforcement personnel from breaking the law is achieved by removing evidence that was obtained illegally.[17]
Exceptions to Exclusionary Rule
- Good Faith Exception: As long as the police officer felt their actions were legitimate as a reasonable person would infer in such a case, it is believed that if the police officer was operating in good faith by relying on a search warrant, then the evidence acquired may be admissible in court.
- When a witness testifies in court, he is susceptible to attacks on his truthfulness and credibility.[18] Evidence can be included to show truthfulness if a witness testifies and the adverse party alleges that the witness is lying.
- If the defendant offers character evidence, whether directly or through a witness, it may be admissible. For instance, in an assault case, the defendant may present evidence establishing that he is a non-violent, peaceful person. The prosecutor is then permitted to present evidence to refute the assertion that the defendant is calm. Alternatively, the prosecution may present evidence to refute the defendant’s statement that the alleged victim of the assault was a violent person.[19]
Conclusion
From the foregoing, it is clear that the exclusionary rule finds expression in Human Rights law, which protects the rights of its citizens. However, while most of Nigerian exclusionary rules are replete with the United Kingdom, which makes them similar, there still exist some lacuna which does not protect the rights of the citizen. Also, the Federal Rules of Evidence of the United States of America, which is not the only law guiding evidence in that jurisdiction, makes it difficult for the exclusionary rule to find expression. Because states of that jurisdiction are not obliged to apply the Federal Rules of Evidence. Exclusionary rules may be seen as a legal technicality. However, ten guilty persons should go free than for one innocent person to be convicted.
Reference(S)
[1] Olanrewaju Olamide, ‘The Application of Evidence in Nigerian Courts’ 2017 <https://djetlawyer.com/application-evidence-nigerian-courts/#more-767> accessed 24 March 2025.
[2] Olatubora R.P. “Law of Evidence 1” (Unpublished PHD Thesis) Redeemer’s University. 2022
[3] Ibid
[4] Section 37 of the Evidence Act 2011 (as amended 2023)
[5] Section 38 Evidence Act 2011 (as amended 2023), In Simeon v State (2018) LPELR-44388 (SC), the Court held that a piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who himself is not called to testify. The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear, or perceive in any manner, the facts given in his testimony.
[6] Section 801 Federal Rules of Evidence
[7] (1955)1 AC 274
[8] Hsieh K-H, Bankowski Z and Chalmers J, “Exclusionary Rule of Evidence in the United Kingdom, United States and China” (thesis The University of Edinburgh 2011) 38
[9] R v. Warickshall 1 Leach 263-64, 168 Eng. Rep.234 (K.B. 1783), the court held a confession forced from the mind by the seduction of hope, or by the torment of fear, comes in such a doubtful shape when it is to be evaluated as the proof of guilt that no credit ought to be given to it. Consequently, it is rejected.
[10] Federal Rules of Evidence of USA (as amended)
[11] Brown v. Mississippi 297 U.S. 278 (1935), the court held that confessions obtained through torture were invalid and went against the Fourteenth Amendment’s guarantee of due process.
[12] Section 27(2) Evidence Act 2004
[13] Section 29(1), (2), (3) and (5) Evidence Act 2011(as amended 2023)
[14] Weeks v. United States 232 U.S. 383, 398 (1914), The Court held that if letters and private documents can thus be seized, held, and used in evidence against a citizen accused of an offence, the protection of the Fourth Amendment, declaring his right to be secure against such searches and seizures, is of no value.
[15] R v. Leatham (1861) 8 Cox CC 498, Crompton J. stated It matters not how you get it; if you steal it even, it would be acceptable as evidence. This sums up the conventional English stance regarding physically obtained evidence after 1861. In Son of Kaniu v. R (1955) AC 197, where evidence had been gathered by two police officers of a lower rank than those authorized to conduct searches, the Judicial Committee held the conviction of a Kenyan for illegally possessing two rounds of ammunition. He was given the death penalty.
[16] Bello Abdulliah, “Admissibility of Evidence Obtained through Illegal Search and Seizure: A Critique” (2021) 6 AFJCLJ <https://journals.ezenwaohaetorc.org/index.php/AFJCLJ/article/download/1633/1675> accessed 24 March 2025. In Musa Sadau v State (1968) NMLR 208, where his house was searched and a large number of vehicle licenses and forms and similar papers were recovered and he was convicted. The court held that the evidence was admissible notwithstanding the illegality of the way it was collected, even if it had been obtained by an unauthorized search and seizure.
[17] United States v. Leon, 468 US 897, 918 (1984); Hudson v. Michigan, 547 US 586, 591 (2006); Herring v. United States, 555 US 135 (2009).
[18] Rule 607 Federal Rules of Evidence of USA (as amended)
[19] Rule 404(a)(2) Federal Rules of Evidence see also section 82(2),(3) and (5) and 180(g) of the Evidence Act 2011
