The Exclusionary Rule In Law Of Evidence

The Exclusionary Rule In Law Of Evidence 

The two fundamental questions about evidence concern its relevancy and admissibility. Evidence need not only be relevant in the eyes of law, but it must also be admissible. For instance, a confession obtained through torture cannot be considered admissible since it was obtained through prohibited means. This reflects how law is as much concerned with the truth of the matter as it is with procedures prescribed by it. This exclusion of evidence due to its inadmissibility is termed as the exclusionary rule and it prevents obtaining evidence gathered in violation of the Constitution. The rule has its origins in common law and has been extensively applied in various jurisdictions across the world.

However, some of its most profound applications have been in the United States through various landmark criminal cases such as Miranda v. Arizona[1] and Payton v. New York[2].

  • Miranda is a famous landmark case as it led to the formation of the ‘Miranda Warnings’ in the US. The defendants during police interrogations self-incriminated themselves, however they were not informed of their rights under the Fifth Amendment which provides for rights against self-incrimination in a criminal case. The court deliberated whether it was necessary for an arrested person to be notified against self-incrimination before interrogation. It held that the police need to notify arrested individuals of their Fifth Amendment constitutional rights, by clearly stating, “You have the right to remain silent and refuse to answer questions. Anything you say may be used against you in a court of law…” This became famously known as the ‘Miranda Warnings’ which are now an important part of the American culture. Any confession obtained without these warnings is inadmissible.
  • In Payton v. New York, the Supreme Court through judicial review struck down a New York statute which allowed warrantless entries. The police officers went to the appellant’s house to arrest him based on a criminal charge and entered the appellant’s house without a search warrant. The trial court in New York allowed the evidence obtained since warrantless entries were legal according to New York law, but the Supreme Court struck down statutes allowing warrantless entries which were in violation of the Fourth Amendment.

These two judgments have constitutional relevance for Pakistan. Firstly, the Fourth US Amendment is similar to Article 14(1) of Pakistan’s Constitution which states:

14. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.

The article provides that every person has a right to privacy in their homes. Police cannot enter a person’s house without a warrant.

Art. 14 (2) state that involuntary confession extracted by means of torture cannot be used against the person making the confession:

14. Inviolability of dignity of man, etc. (2) No person shall be subjected to torture for the purpose of extracting evidence.

Secondly, Article 10(1) is similar to the Fifth Amendment in the sense that every accused has a right to counsel. It provides:

10. Safeguards as to arrest and detention. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

Pakistan’s Constitution also makes a mention against self-incrimination in Article 13 (b), which is also similar to the US Fifth Amendment as it provides for the right against self-incrimination. Article 13(b) provides:

13. Protection against double punishment and self incrimination. No person— (b) shall, when accused of an offence, be compelled to be a witness against himself.

This has also been specified in section 38 and 39 of the Qanun-e-Shahadat Order 1984 which provides:

38. Confession to police officer not to be proved: No confession made to a police officer shall be proved as against a person accused of any offence.

39. Confession by accused while in custody of police not to be proved against him: Subject to Article 10, no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against person. 

Explanation: In this Article, “Magistrate” does not include the head of a village discharging magisterial function unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure 1898 (Act V of 1898).

In this regard, the development of the law of evidence in various jurisdictions has been a product of constitutional principles so that an accused is not convicted without due process of law.

In Pakistan’s context, the exclusionary rule provides a constitutional means to exclude evidence which is obtained through unfair means as the law is not just concerned with the end, but with the means being employed as well.



[1] 384 U.S. 436 (1966)
[2] 445 U.S. 573 (1980)


The views expressed in this article are those of the author and do not necessarily represent the views of or any organization with which he might be associated.

Abdul Rafay Siddiqui

Author: Abdul Rafay Siddiqui

The writer is a final year law student at the Lahore University of Management Sciences (LUMS) an has keen interest in Constitutional Law. He can be reached at [email protected]

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