The Good Faith Exception to the Exclusionary Rule -American and Chilean Law-
| Autor | Carlos Correa Robles |
| Cargo | Universidad Adolfo Ibáñez, Santiago, Chile |
| Páginas | 185-208 |
THE GOOD FAITH EXCEPTION TO THE
EXCLUSIONARY RULE
–AMERICAN AND CHILEAN LAW–
Carlos Corre a robles
*1
Abstract
This work analyzes the possibility of considering the exception
known in the American legal system as the good faith exception,
as an exception to the exclusionary rule established in article
276 section 3 of the Chilean Criminal Procedural Code. For this
purpose, the work rst tackles the issue through the American
case law, where this exception was created, and then critically
analyzing the approach taken by Chilean case law and legal
scholarship regarding this subject.
Key words: Criminal procedure, exclusionary rule, illegal evidence, good faith, law of evidence.
INTRODUCTION
Since the reform of the Chilean cri minal procedure came into force more than
fteen years ago, t he treatment and scope given by the domina nt legal scholarsh ip
and the courts to the exclusionary rule established in Art. 276, section 3 of the
Criminal Procedural Code (hereinafter, Art. 276.3 CPP), is to a large extent based
on the reception of the exclusion of evidence model developed for more than a
century in American case law.
That model gets its structure from a general rule: the exclusion of the evidence
obtained by law en forcement ofcers in violation of the r ights guar anteed in some
of the Amendments to the United States Constitution; and as a counterpart, the
acceptance of various exceptions to t hat r ule that under cert ain preconditions
authorize the admission into tria l of that evidences, despite the vices that concur in
their acquisition.
The reception in the Chilean lega l system of the exceptions to the exclusionary
rule acknowledged by the Supreme Court of the United States, has settle among the
dominant legal scholarship and in judicial decisions. Their incorporation (acritical
most of the time) has contributed to courts ignoring their singularities regarding
*1 Uni versi dad A dolfo Ibá ñez, S ant iago, Chi le (c.correa @uai.cl). I am g rate ful for the valu able c om-
ments, correct ions and suggestions from the a nonymous referees, and especia lly to Professor Juan
Pablo Ar istegui Spi kin for t he English translation of this article. A rticle rece ived on September
25, 2017 and accepted for publication on November 28, 2017. Translated by Juan Pablo Aristeg ui
Spikin.
Carlos Correa Robles
186
LATIN AMERICAN LEGAL STUDIES Volume 2 (2018)
their operative preconditions, or even whether they are compatible with our positive
legislation.
Since the system w ithin which these except ions were original ly conceived has
a different structure from its Chilean counterpar t, which distinctively belongs to the
Continental legal tradition, their reception in our criminal procedure demands at
least a special justi cation that permits to val idate (or to dismiss) their application
in a different legal context. The reception in Chile of the “agent’s good faith” as an
exception to the exclusionary rule is especially problematic. The next sections are
devoted to those issues.
1. THE EXCLUSIONARY RULE AND THE FRUITS OF THE
POISONOUS TREE DOCTRINE IN AMERICAN LAW, AND ITS
EXCEPTIONS. GENERAL CONCEPTS
One of the most relevant American judicial developments in the eld of crimi nal
procedure is without a doubt the so-called “exclusionary rule” and its logical
corollary, the well-known “fruits of the poisonous tree doctrine”.
As already noted, that rule –originally acknowledged by the Supreme Court of
the United States in 1914 and further polished in the following years– has not only
impacted t he way in which the “illegal evidence” [“prueba ilícita”], as it is known
among us, has been addressed in American law, but it has also impinged directly
upon the development of the subject in legal scholarship and case law in foreign
countries, being Chile one of them.
Initial ly developed by the highest Amer ican tr ibunal from its 1914 decision in
Wee ks v. U.S.1 onward, the exclusionary rule sanctions with the inadmissibility in a
crimina l court of those evidences compiled by law enforcement ofcers in violation
of the rights guara nteed in the Fourt h (protection against illegal detentions, searches
and seizures), Fift h (priv ilege again st self-incrim ination and double jeopardy),
Sixth (fair tr ial, speci cally t he right to legal counsel), or Fourteenth (due proces s)
Amendments to the Constitution of the United States.2
A few years after Wee ks , in its decision in Silverthorne Lumber Co. v. U.S .,3 the
Supreme Court stretched the consequences of the rule, comprising among the
evidence to be excluded not only the evidence di rectly obtained through interferences
on any of those rights, but also the evidence that d erived from an illegal act, that
is, evidence causally connected to a violation of those rights. Ruli ng the Court at
that time that “the essence of a provision forbidding the acquisition of evidence in
a certain way is that not merely evidence so acquired shall not be used before the
1 See Weeks v. U.S. (1914); Nardone v. U.S. (1939); Mapp v. Ohio (1961); Wong Sun v. U.S. (1963); Segura v.
U.S. (1984); Nix v. Williams (1984).
2 See
Correa
(2016), pp. 161 and ff.
3 Silverthorne Lumber Co. v. U.S. (1920).
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