I. Introduction

Since its inception, the Exclusionary Rule (ER) has been among the most controversial and widely debated legal doctrines in American common law. This debate has not been limited to the United States, persisting in Canada and, more recently, in Mexico. Rooted in the Fourth Amendment of the U.S. Constitution-which guarantees the “right of the people to be free from unreasonable searches and seizures”-, the ER was first established in Weeks v. United States, 232 U.S. 383 (1914). For over a century, it has been a cornerstone of jurisprudence in North America’s common law systems in the U.S. and Canada. An early precursor to the ER appeared In Boyd v. United States, 116 U.S. 616 (1886), where the Court excluded evidence obtained through a police demand for private documents, deeming it an unreasonable search and seizure. The Court further reasoned that such an action amounted to compelling self-incriminating testimony, reinforcing the rule´s foundational principles.

Since then, the ER has evolved into a judicial mechanism that limits government overreach, safeguards privacy rights, upholds the integrity of the courts, and deters unconstitutional police conduct by “throwing out” illegally obtained evidence. Courts have traditionally justified this rule by emphasizing the need to prevent tainted evidence from undermining the judiciary´s reputation and preserving what Justice Stevens termed “the imperative of judicial integrity”.¹ Matthew Kim expands on this view, suggesting that the ER not only protects judicial integrity, but strengthens it, at least in the United States.² Similarly, Bloom describes it as “the major remedy in the United States for addressing a police illegality”.³ Other scholars, including Correa;⁴ Bloom, Fentin and Smith,⁵ and Orfield⁶ have echoed this perspective, highlighting the ER´s role as a substantive deterrent against police misconduct in the US.

The Exclusionary Rule has faced vocal critics on both sides of the 49th Parallel. Generally, they argue that the rule has no clear basis in the Fourth Amendment, does little to deter police misconduct (e.g., offering neither guidance on respecting constitutional rights nor incentives for internal discipline) and may encourage further wrongdoing, such as additional violations to ensure tainted evidenced is admitted in court. No one embodied these criticisms more famously than U.S. Federal Appeals Judge Malcolm Wilkey, who even nicknamed the rule as “irrational”. He blamed it for rising crime rates-ina nation, as he quipped, where a criminal “can parade in the streets with a submachine gun in a blanket under hisarm”-,⁷ as well as for undermining police accountability, and at times, incentivizing even more egregious misconduct. After a century of jurisprudential debate, the issue remains unresolved in its country of origin.

On the other hand, the evolution of the Exclusionary Rule in Canada followed a very different path from that of its southern neighbor, though it ultimately reached a similar outcome. Rather than allowing the rule to develop solely through judicial precedent, Canada proactively included it in the Canadian Charter of Rights and Freedoms (henceforth, the Charter), enacted in 1982. Mirroring the U.S. Fourth Amendment, the Charter guarantees that“[e]veryone has a right to be secure against unreasonable search and seizure”and explicitly mandates the exclusion of evidence if its admission “would bring the administration of justice into disrepute”. Beyond this, the Charter also enshrines other protections, including due process rights, safeguards against unlawful searches or seizures, the right to counsel, and prohibitions on cruel and unusual punishments. Before the Charter, however, Canadian courts largely favored admitting evidence as long as it was “relevant, probative and reliable”.⁸ The most famous and relevant is section 24(2), which states: “Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (Canadian Charter of Rights and Freedoms, s 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11).

However, this does not mean that judicial review has not played a key role in shaping the Exclusionary Rule in Canada. In fact, courts are partly expected to help remedy violations of individual liberties since⁹ the Supreme Court established guidelines for lower courts when assessing evidence admissibility. In Collins v. The Queen, 1 S. C. R 265 (1987) the Court emphasized that judges must consider excluding evidence if it undermines trial fairness, and that they should also take into account the seriousness of the Charter violation (e.g., a “good faith” error being less severe than an avoidable breach), and the potential harm to the judiciary´s reputation.¹⁰

It is important to bear in mind that Canada is a common law nation whose legal system operates on precedent. While it has taken significant legislative steps to address the inclusion or exclusion of evidence (such as amending the Charter of Rights and Freedoms through the well-known section 24(2)), case law remains predominant, as legislative bodies have been unable to establish a clear consensus. As noted by Skinnider, “whether and in what circumstances courts should exclude illegally or improperly obtained evidence is one of the most hotly contested questions in criminal procedure and evidence law”.¹¹ Similarly, Osborn affirms¹² that in Canada illegally obtained evidence is excluded only when its prejudicial effect outweighs its probative value, or when it is either irrelevant or unreliable, an approach Mexico should consider.

While the norm is said to be “American Made, Canadian Approved”, the past 15 years have seen a growing debate in Mexico regarding the Exclusionary Rule. After centuries of civil law tradition and inquisitorial process, the country has adopted certain common law legal principles, including the adversarial system. Under significant U.S. political and economic pressure, Mexico underwent a dramatic shift, prioritizing not only the rights of the accused but also the protection of victim´s rights. State authorities are now obligated to uphold the presumption of innocence, due process, the right to legal counsel, and the prohibition of self-incrimination.

However, alongside the positive changes, the adoption of the adversarial system has raised concern among citizens, legal professionals and scholars. Key issues include the potential for guilty parties to go free, insufficient measures to curb police corruption, and challenges in safeguarding the integrity of the criminal justice process. Now, fifteen years into the transition, Mexico’s legal community continues to grapple with balancing the rights of the accused against those of victims, including questions of reparations and compensation.

This article’s central question is whether Mexico should formally incorporate the North American version of the Exclusionary Rule (along with its exceptions), into its written legislation. Given that Mexico’s decision to reform its centuries old legal traditions was partly influenced by its northern neighbor, the analysis focuses on the path taken by the U.S. and Canada -rather than other legal systems like Spain-, since both nations have struggled with this issue extensively in their courts and legislatures. We argue that Mexico should avoid letting “history repeat itself” by waiting for courts to legislate through judicial fiat, as occurred in the U.S. Instead, it should confront the issue directly with comprehensive legislation and, if possible, a constitutional amendment, one that is even more progressive than the Canadian Charter. Additionally, the legislature should proactively codify exceptions to the Exclusionary Rule while providing clear guidelines and training for law enforcement and judges on its implementation.

We believe Mexico is likely to follow the path traced by its northern neighbors. First, no country exerts more political pressure -formal or informal- on Mexico than the U.S. In fact, Mexico’s ongoing transition to an adversarial legal system is largely driven by U.S. mandates tied to American financial support. As a result, like most Latin American countries, Mexico´s Criminal Procedures Code already establishes an adversarial system blending elements of traditional civil law and American-inspired common law.

Second, the geographical proximity of the U.S. and Canada, along with long-established treaties, trade ties and/or cultural exchanges, makes them natural reference points -much as France might look to Italy for legal guidance rather than overseas. Finally, both the U.S. and Canada have operated under the adversarial system for generations, developing a robust legal framework that Mexico could leverage to its advantage.

II. Methodology

This analysis is based on a review of the most relevant judicial precedents from the United States and Canada, in addition to legislative frameworks in Mexico. These selected cases focused on the obtention of illegal evidence, a key element in any investigation. For the Mexican case, the analysis covers constitutional standards, applicable criminal laws, and jurisprudential criteria. Moreover, key factors influencing the application of the Exclusionary Rule-including trial fairness, judicial integrity, police misconduct, prosecution, and suppression motions-are examined. Through an analysis of suppression motion frequency, persecution rejection rates, and their potential systemic impact, this research evaluates whether these rules safeguard or undermine the criminal justice system. Additionally, we include a comprehensive literature review of noteworthy academic articles on illegal evidence in the United States, Canada, and Mexico.

III. The Exclusionary Rule in the U.S. and Canada

The history of the Exclusionary Rule goes back to the second decade of the twentieth century. However, its foundational precedent emerged earlier in Boyd v. United States, 116 U.S. 616 (1886), when the Supreme Court linked the Fourth and Fifth Amendments. In this landmark ruling, the Court held that compelling a defendant to produce private documents constituted an unconstitutional search and seizure protections to obtain self-incriminating evidence, such conduct also breached the Fifth Amendment’s safeguards against compelled testimony.

This was later solidified in the landmark case of Weeks v. United States, 232 U.S. 383 (1914) where the Supreme Court specifically established the necessity of excluding illegally obtained evidence. The court emphasized that this exclusion served not merely to deter unconstitutional conduct by authorities, but to safeguard judicial integrity. In its ruling, the Court rejected the admission of private documents seized by federal law officers without a warrant. This made the U.S., according to Craig Bradley, the first nation to exclude probative evidence from the court process in order to protect citizens from government infringement on individual rights.

The Warren court would later apply these protections to the state jurisdictions via Mapp v. Ohio, 367 U.S. 643 (1961), explicitly citing constitutional safeguards against illegally obtained evidence. The decision prioritized both the importance of preserving judicial integrity and the necessity of deterring government misconduct, particularly by police enforcement. In Mapp, the court excluded “lewd and lascivious” materials found during an unlawful warrantless search for a bombing suspect despite their prohibited status under Ohio law. Additionally, the Court overturned part of its prior decision in Wolf v. Colorado, 338 U.S. 25 (1949), which had previously held that the exclusionary rule did not apply to state proceedings.

Even with a more clearly defined exclusionary rule under the Canadian Charter, the issue has remained a subject of debate and judicial review in Canada. Unsurprisingly, Canadian courts have developed extensive case law on the matter, sparking significant controversy. It is worth noting that Canada’s adherence to the exclusionary rule stems, at least in part, from international law¹³ and a longstanding commitment for human rights -not merely deference to American common law precedent. Ultimately, however, Canadian jurisprudence leans more heavily on the Charter and domestic legal precedent as it seeks to balance the rights of the accused against the society’s interests` in punishing criminal offenders. As former Canadian Justice Lamer articulated in R. v. Hogan,¹⁴ this involves weighing the “social interest in the particular case and against the gravity or character of the invasion”. Before the Charter, Canadian courts almost invariably favored admitting “relevant” evidence regardless of how it was obtained. However, in recent decades, they have also acknowledged the need to curb police misconduct and uphold judicial integrity by excluding evidence obtained through rights violations, most notably through “Collins framework”.

In 1987, the Supreme Court of Canada first interpreted section“24(2)”-the provision governing the exclusion of evidence-in the case of Ruby Collins, who had been forcibly detained by the Royal Canadian Mounted Police (RCMP) and found in possession of a small balloon filled with heroin. Collins argued that the warrantless search violated section 8 of the Charter, which guarantees freedom from unreasonable searches and seizures. Overturning lower courts, Canada’s high court emphasized that judges must assess “all of the circumstances” (similar to the American “totality of the circumstances” test) when deciding whether to exclude the evidence. Key considerations include the nature of the evidence, the severity of the state violation (i.e. technical error versus deliberate misconduct), and the availability of alternative means to obtain the evidence.

Skinnider notes that the ultimate result was a three-part guide for lower courts to consider 1) how admitting the evidence would affect trial fairness, 2) factors to assess when evaluating the seriousness of the Charter violation, and 3) whether admitting the evidence would bring the judicial system into disrepute. While this “Collins Framework” provided the initial guidance, courts in the following years generally distinguished between types of evidence, favoring the admissibility of real evidence, (e.g., a murder weapon) while dismissing selfincriminating evidence (e.g., confession). However, this did not mean Canadian common law would not continue evolving on the issue.¹⁵

A decade later in R. V. Stillman, 1 S.C.R. 607. (1997), the Supreme Court of Canada offered further guidance by distinguishing between “descriptive” and“non-descriptive” evidence. Descriptive evidence- such as evidence obtained without “compelling cooperation”- was not subject to protection, while nondescriptive evidence, -where the accused was compelled to participate in the“creation or discovery of the evidence,“ as with the hair samples, buccal swabs and teeth impressions in this case- was deemed inadmissible regardless of its probative nature. However, this dichotomy didn’t last. In 2009, the court revisited the issue in R. v. Grant, [2009] 2 S.C.R. 353, abandoning the Collins framework in favor of a “fresh look” at the exclusion of evidence under section 24 (2) of the Charter.

In Grant, the Supreme Court of Canada, recognizing the ambiguity of earlier rulings and the resulting challenges in applying them consistently, established “three avenues of inquiry” to be assessed from a long-term, forwardlooking, and societal perspective”. The court revisited and revised the “Collins test”, raising the standard for excluding evidence. The case involved Donahue Grant, a young Black man, who was walking on a sidewalk in a location police deemed considered to be a high-crime area, when he was approached by several officers, including two plainclothes detectives. Driving past Grant, the detectives claimed he “stared” at them and was acting suspiciously by fidgeting in his pants and jacket. Along with a uniformed officer who intentionally blocked Grant’s path, the three officers confronted him. According to the police, Grant acted “suspiciously”, and he was asked to keep his hands visible while he was questioned as to whether he was carrying anything he should not. He admitted that he was carrying a firearm and a small quantity of marijuana. He was then read his rights and arrested.

At trial, Grant claimed the stop and arrest violated his rights under multiple sections of the Canadian Charter of Rights and Freedoms and sought to have the evidence excluded. However, the trial judge disagreed and admitted the pistol as evidence, resulting in Grant’s conviction on several firearms offences. Grant appealed, but the appeals court upheld the decision, ruling that while the detention was “arbitrary”, and breached section 9 of the Charter, the evidence remained admissible under section 24(2). The Supreme Court later confirmed this ruling, concluding that while the stop was arbitrary, it was not “sufficiently egregious” to exclude the evidence, and the weapons convictions were upheld.

Thus, when balancing the effect of admitting evidence against protecting individual rights and upholding the integrity of the justice system, courts must consider three key factors: (1) the seriousness of the state conduct that violated the Charter (as admitting the evidence could signal judicial tolerance of serious state misconduct), (2) the extent to which the breach undermined the accused’s Charter-protected interests (since admission might devalue individual rights); and (3) society’s interest in resolving the case on its merits (para. 71). Additionally, the court confirmed that judges must consider the totality of the circumstances surrounding the evidence’s acquisition and determine whether its admission would bring “the administration of justice into disrepute” (para. 71) (R v Grant, 2 SCC 32, 2 SCR 353 (2009)).

In short, the court ruled that while sections 8 and 9 of the Charter had been violated, the breach was not severe enough to justify excluding the evidence, as doing so would not “bring the administration of justice into disrepute”. Grant marked a significant shift in the court’s approach- moving from balancing the rights of the accused against those of victims, to weighing individual rights against the government’s (and by extension, the court´s) reputation.

Still, the court’s “broad societal test”¹⁶ effort did not settle the issue, and, unsurprisingly, Canada’s courts have since faced numerous exclusionary rule cases, with the Grant’s guidelines remaining “the subject of significant consideration and commentary”.¹⁷ Ultimately, despite a considerable “head start” (including a century of American jurisprudence in the area) a well-written Charter, and almost fifty years of case law, Canada’s legal debate over the exclusionary rule remains unresolved.

IV. Exceptions to the Exclusionary Rule

The development of exceptions to the Exclusionary Rule under common law has also been controversial. While a full discussion falls outside the scope of this article, the following provides a summary of these exceptions. Broadly speaking, evidence obtained in good faith is not excluded, for instance, when police reasonably rely on a search warrant that is later deemed invalid. As established in Stone v. Powell (cited by Brown);³⁰ along with Halpern³¹ and Correa,³² courts may allow evidence obtained by government agents who acted under reasonable, although mistaken, belief that their search or seizure was lawful.

The doctrine of inevitable discovery allows evidence obtained through an unlawful search or seizure to be admitted in court, provided it would have been unavoidably discovered through an independent, legal investigation. For example, in Brewer v. Williams, 430 U.S. 387 (1977) cited by Kamisar³³ and Brooks,³⁴ the court admitted illegally obtained evidence -Williams’ incriminating statements that led the police to the victim’s body- reasoning that the body would have been found eventually, even without the unlawful interrogation. Similarly, in Nix v. Williams (referred by Kaczynski³⁵ and Fishkin³⁶), the Court reaffirmed that evidence remains admissible if it would inevitably have been uncovered through lawful police procedures. Similarly, In Murray v. United States (referenced by Graveline³⁷ and Fee³⁸), the Supreme Court broadened the independent source doctrine, permitting evidence initially discovered during an illegal police entry to be admitted because it was later secured through a valid warrant, independent of the initial illegality.

The attenuation exception to the ER allows evidence obtained through government misconduct to be admissible if the connection between the misconduct and the discovery of the evidence is sufficiently weak. For example, in Wong Sun v. U.S. , a narcotics case, the defendant’s confession followed an unconstitutional arrest. The police initially found heroin in possession of Way, who then led them to Toy. After an illegal entry, Toy implicated Johnny as a drug seller, and at Johnny’s premises, he further implicated Wong Sun. Johnny and Toy were arrested, and the police compelled Toy to take them to Wong Sun’s house. Though no narcotics were found, Wong Sun was arrested. While the Court of Appeals ruled that the arrests and evidence obtained without warrants violated the Fourth Amendment, it held that certain items of proof were not direct products of the illegal arrests and were therefore admissible.

When evidence is challenged but the unconstitutional conduct is deemed too remote from the original police misconduct (i.e., attenuated) it may still be admissible.³⁹ The independent source doctrine permits the use of evidence initially obtained unlawfully, such as through an illegal search, if it is later acquired through constitutionally valid means. Additionally, the government may sometimes introduce illegally gathered evidence (impeachment evidence) not to prove guilt but to challenge the credibility of a defense witness. Finally, qualified immunity shields police officers from civil lawsuits-often a defendant’s only recourse for a rights violation (i.e., illegal search)-unless the officer acted entirely outside the scope of their lawful duties.

For over a century, America’s common law courts have stirred controversy by carving out numerous exceptions to the Exclusionary Rule, such as the “good faith exception”. The U.S. Supreme Court’s ruling in Silverthorne Lumber Co. v. United States,⁴⁰ began weakening the ER declaring that illegally obtained evidence “become sacred and inaccessible“ -this exception is now known as the “independent source” doctrine. Over time, courts have interpreted additional exceptions, leading many to argue that these represent a steady, albeit slow erosion of Fourth Amendment protections. Critics of the ER, as Stribopoulos points out, often dismiss its role in preserving judicial integrity.⁴¹ Carolyn Yagla goes further, asserting that “the Exclusionary Rule has evolved from a constitutional right to its present interpretation as a judicial remedy applicable only when it will advance the goal of deterrence”.⁴² We argue that Mexico should not emulate this approach. Instead, legislative action, rather than relying solely on judges, is necessary to protect the accused and effectively deter police misconduct.

In Canada, while the Charter has not relied as exclusively on case law for specific exceptions, the Supreme Court has still been called to interpret its provisions and provide some guidance for lower court judges. Historically, preCharter Canada left the determination of evidence’s probative value -and thus its admissibility- largely to the discretion of individual judges. This has resulted in a legal framework that generally favors admissibility over exclusion. Moreover, Canadian scholarship on the ER tends to prioritize safeguarding the judiciary from “disrepute” rather than focusing primarily on deterring police misconduct or protecting individual rights. As Robert Harvie observes, while stemming police misconduct may be a benefit that results from the ER, “the purpose of section 24(2) is to prevent the administration of justice from being brought into further [italics added] disrepute by the admission of the evidence at trial”.⁴³ Thus, Mexico may require a legislative, rather than a judicial, approach to effectively address police corruption and rights violations.

V. The Exclusionary Rule in Mexico

Unlike its northern neighbors, Mexico’s Exclusionary Rule is not a product of judicial interpretation but is explicitly enshrined in the Federal Constitution and in the National Criminal Procedures Code. Further, protection against the use of illegally obtained evidence (known as“prueba ilícita”)is recognized as a human right and is as one of the key tools of court officials to protect the rights of the accused.⁴⁴ As in the U.S., however, it is also viewed as an important safeguard of judicial integrity, since judges are expected to disregard illegally obtained evidence when determining guilt or innocence.

Additionally, a key purpose of the exclusionary rule in Mexico was to reduce illegal practices during detentions and criminal investigations.⁴⁵ Unlike in Canada and the U.S., Mexico’s ER is not considered to be a remedy for the personal “harm” suffered by the individuals subjected to an unlawful arrest or searches. In other words, it is not designed to deter police misconduct or correct unconstitutional practices by law enforcement. As Salas Calero notes, most police officers are poorly informed about the rule’s application or its exceptions, and there is minimal accountability for illegally obtained evidence.⁴⁶ Furthermore, the lack of professionalism in police work has led to a high number of due process violation complaints filed with Mexican human rights organizations.

It is evident that Mexico’s ER not only shares origins with the U.S., but also mirrors its expectations and growing pains. Now that Mexico has adopted a common law legal process, it will likely face the same centuries-long struggle of legal precedents to achieve the desired balance. However, we argue that this ought not be necessarily the case. Mexico can “predict the future” by examine the evolution of the Exclusionary Rule in the U.S. and Canada, using their histories to craft a legislative remedy more aligned with the Canadian Charter of Rights and Freedoms. Rather than waiting decades to achieve a fragmented judicial review, we suggest a more substantive legal reform in the National Criminal Procedures Code, one that clearly defines protections from the outset.

While the exclusionary rule inevitably means some criminals may go free, history in the U.S. and Canada suggests that this number is minimal (e.g., less than 1% at the U.S. federal level) and typically applies only to relatively minor cases. We argue that the more pressing concern is the need to curb police misconduct and strengthen public trust in the criminal justice system. Furthermore, fears about “cartel members evading justice“-asignificant issue in Mexico-could be mitigated by incorporating a “crime seriousness test” into the law. This would involve a legislatively codified directive instructing judges to weigh the admissibility of evidence based on the gravity of the offense and, where relevant, its ties to particularly dangerous Drug Trafficking Organizations.

While this article cannot fully address all the legal, political and social objections to the ER, several key criticisms have persisted in both the U.S. and Canada. Opponents argue that the rule allows the guilty to go free and fails to assist innocent victims of police misconduct when no illegally obtained (or planted) evidence exists. Additionally, critics contend that it provides, at best, a minimal deterrence against police misconduct and may even incentivize further corruption, such as perjury. Lastly, existing tort remedies have proven inadequate in deterring police violations. Our broader argument is that these criticisms have endured for decades in both the U.S. and Canada, and strikingly similar objections have emerged in contemporary Mexico. The next section briefly addresses each of these issues.

VI. Summary and Conclusions

Both the Exclusionary Rule and its exceptions have been controversial in the common law for Mexico’s northern neighbors for over a century. Now, Mexico finds itself in the early stages of a similar trajectory, one that will likely involve numerous court cases, evolving precedent, and potentially decades of legal development without clear political, legal or social consensus.

To avoid generations of legal conflict and public discord, we propose that Mexico address this issue directly, through legislative action. Congressmen should evaluate relevant historical documents, such as the U.S. Constitution’s Fourth and Fifth Amendments and the Canadian Charter along with pertinent legal precedents. Furthermore, the legislation should articulate clear and concise exceptions to the exclusionary rule, preventing courts from creating ad hoc exceptions. The amendment’s application should also be precisely defined in the National Criminal Procedures Code and automatically extended to the states. As U.S. District Judge Mary Scriven stated in an interview when asked whether ER interpretations should primarily rest with courts or Congress, she remarked, “We[judges] wish the legislature would give us more [legislative] guidance” lamenting that the ER has become perplexing with “not only exceptions but exceptions to the exceptions”.⁷⁴ Mexico’s Congress now has an unique opportunity to provide substantive clarity and judicial guidance.

Recognizing the legitimate concern regarding impunity for particularly egregious crimes, and criminals who commit them, on what could be perceived as technicalities, the law could incorporate“ascale of exclusion” that offers stronger protections in minor cases (e.g., theft) and reduced protections in more serious cases, particularly those involving drug cartels. While this may seem like an unequal application of the law, history demonstrates that such a de facto approach has long been used in the U.S. and Canada under the Exclusionary Rule. Mexico would simply be formalizing a measure that would likely evolve organically, even without formal legislative action. We believe that well crafted, substantive guidelines would provide judges with a valuable framework for adjudicating evidentiary concerns.

Therefore, legal provisions must include exceptions to the rule, given that written law is the primary main legal source in Mexico. One of the key shortcomings in the Mexican regulation of the Exclusionary Rule is that the National Criminal Procedures Code fails to specify any exceptions to the prohibition of illegally obtained evidence. Currently, the exclusion of such evidence is absolute, meaning that any tainted evidence introduced in a legal proceeding will be deemed devoid of probative value and rendered null.

Mexico should not hesitate to introduce exemptions to the exclusion of evidence, especially since, as previously explained, impunity does not stem from prohibiting improperly obtained evidence. As Teresa Armenta⁷⁵ points out, the exclusion of illegally obtained evidence should not be absolute.

A starting point in the ER regulation should include a “crime seriousness test”. In fact, Bellin suggests Mexico should consider the discussion of the socalled crime-severity distinction in such a way that courts can make case-bycase assessments of the offense severity.⁷⁶ This, however, would be difficult under traditional common law and judicial review and thus must be codified by the legislature and ratified in the Constitution.

In this regard, it is necessary to establish a clear regulation clarifying specific cases where illegal pieces of evidence deserve to be excluded from criminal procedure. As mentioned before, every crime investigation has its features, and not all illegal conduct has the same impact on society. At the same time, not all police actions generate the same damage to those suspected of having committed a crime. In other words, the small, good-faith errors perpetrated by the police while investigating felonies should not summarily be excluded. However, if more serious violations of individual rights take place during an investigation of mere/ordinary infractions, they should result in the exclusion of the corrupted piece of evidence.

In its first decade of transition to an adversarial system Mexico is already struggling with issues that the U.S. and Canada have faced before, including ER’s efficacy in reducing police corruption, contaminating the reputation of the court by entering illegal evidence and the concerns that guilty criminals will go free. Further, these legal conflicts continue in both the U.S. and Canada.

Mexico possesses sufficient competent jurists who could interpret the law and create legal precedents that can make the Exclusionary Rule work efficiently. However, this article suggests that the best possible outcome for Mexico is to develop a more proactive, legislative-driven legal framework which follows the lessons learned from over a century’s worth of common law, controversies and actual outcomes in the legal systems of its northern neighbors. This would help to craft an Exclusionary Rule framework that fits Mexico’s culture and societal norms rather than waiting three generations of stare decisis. If U.S. and Canadian history is any guide, a rule change is needed that aims for a more direct change that provides substantive legal guidelines on police powers, prosecutorial discretion, judicial review, admission of evidence, etc.

The incorporation of extensive and well-crafted regulations aims to ensure that judges admit or deny evidence depending on crime severity distinctions. With this specificity, courts would be able to easily identify and assess serious crimes and non-custodial offenses by allowing for a broader investigation of high-impact crimes and enabling concrete limits on investigations of minor crimes.

In addition, an extra-legal step would be the swift implementation and use of “body cams” in Mexico. As District Judge Mary Scriven has said,⁷⁷ contemporary experience in U.S courts suggests that video and audio evidence make admissibility arguments less relevant since there is clear media evidence of the event and courts no longer need to rely solely on law enforcement or defendant testimony. Courts can now directly see if a violation has indeed occurred. We believe additional sources of audio and video evidence from dash cameras (police and citizen), closed-circuit television, cell phone records, etc., would definitely aid in legal determinations of admissibility.

Mexico’s legislature must provide a mechanism that addresses civil remedies for those whose rights are violated. We believe these may be codified in legislature with specific guidelines and penalty ranges that presiding judges would follow. That is, the judge in the criminal trial would have the flexibility to assign a civil penalty (e.g., fine) when there has been a rights violation without the need for a defendant to file a separate civil tort. This would redress individual grievances and limit the need for recourse to third parties in tort courts.

Finally, we consider it important to address potential judicial errors or malfeasance. While a more thorough discussion is outside the scope of this article, we offer two suggestions. First, Mexico could create a judicial commission with specific review and remedy powers (e.g., mandated compensation to the victim of a violation; discipline of the offending judge) when there is judicial error or misconduct. While this may seem like a daunting task, the limited number of cases it would review makes it manageable. Secondly, Mexico must reinforce judicial ethics and the principle that, perhaps more than any other branch of government-asit does not have the command of the military or law enforcement- the Judiciary depends on the faith and trust of the citizenry, as well as the other branches of government, for its rulings to be enforced.