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This comes from the movie A Guilty Conscience, which may be one of the best movies of the past 20 years in Hong Kong and its box office is the highest ever.

Movie Spoiler Warning

What if the defendant's lawyer obtained some evidence that can prove the defendant not guilty, but he obtained it illegally (such as by electronic eavesdropping).

Now the Jury all hear that evidence (the recording and and perhaps even the video). However, since the judge said it is illegally obtained, the judge told the Jury they should discard this evidence.

So, now the Jury is faced with 2 choices:

  1. Discard the evidence, and without it, now the defendant will have a death sentence or life prison
  2. Take that evidence into consideration, which is to ignore the judge, and set the defendant free

What if the Jury as a whole chooses option 2, which is opposite of what the Judge told them to do. Then what will happen — will the defendant simply be set free?

(and as a side note, do you know if this applies to most other parts of the world? And if the Jury knows the defendant is not guilty but he or she is sentenced to a death sentence or life prison, isn't that outright absurd? But I guess I will ask it as a separate question)

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    Do you mean "disregard" instead of "discard"? Feb 15, 2023 at 16:20
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    "However, since the judge said it is illegally obtained, the judge told the Jury they should discard this evidence." Maybe a separate question, but the judge may very well be wrong about that. Since the evidence is being presented by the defense, the fact that it was illegally obtained doesn't violate the defendant's constitutional rights. I think a more likely outcome is that the evidence should be admitted, and whoever obtained it illegally gets punished separately. Feb 15, 2023 at 17:18
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    If the judge does order it disregarded, and the jury ends up finding the defendant guilty, I think that would be grounds to have the verdict overturned on appeal. Feb 15, 2023 at 17:19
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    See law.stackexchange.com/questions/62348/… for the latter question, though I don't think the current answer addresses it very clearly. Feb 15, 2023 at 17:22
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    @NateEldredge Admitting illegally obtained evidence never violates anyone's Constitutional rights unless there's some reason to think the evidence is unreliable. (for example, if it was obtained by torture.) Obtaining the evidence illegally may have violated someone's Constitutional rights, but that rights violation is already complete and not admitting the evidence doesn't undo it. Feb 17, 2023 at 3:00

7 Answers 7

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The jury would never hear the recording

The recording and its provenience would be provided to the prosecution who would, rightly, have issues with its admissibility. The defence and prosecution would make submissions on this to the judge, normally well before the trial date and the empaneling of the jury. If the recording had genuinely emerged during the trial, such submissions would be made without the jury seeing them. The submissions would typically be in writing rather than verbal. If the judge decided the evidence was inadmissible the jury would never see it and never know of its existence.

If the jury somehow found out about it anyway, this would be grounds for an immediate mistrial and we would start again with a new jury.

Illegally obtained evidence is not automatically inadmissible

Hong Kong is not the United States - admitting or excluding illegally obtained evidence is at the discretion of the judge based on where the interests of overall justice are best served. In any event, the absolute prohibition in the US applies only to prosecution evidence - evidence illegally obtained by the defence is subject to the same rules as in Hong Kong; the judge decides.

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    Even in the United States, illegally obtained evidence can be entered as long as the police didn't do it, or it fits in one of the exemptions.
    – Mary
    Feb 15, 2023 at 23:59
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    @StefanieGauss I think you are misunderstanding the answer. The evidence would not be inadmissible in the U.S. Only evidence against the defendant is inadmissible if illegally obtained (because that violates the Constitutional rights of the defendant.) Evidence in the defendant's favor can still be admitted. If the evidence does, in fact, prove that the defendant is innocent, then there's a good chance that the case would be dropped entirely when it came to light (as it should be.)
    – reirab
    Feb 16, 2023 at 3:21
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    @reirab you misunderstand as well. In the US, as elsewhere, evidence illegally obtained (other than by the state) might be admissible or might be inadmissible- the judge has to decide. Standards vary by jurisdiction but, in general, the judge is required to balance the need for justice in this trial against the overall need for justice in generally not encouraging illegality. If the evidence is highly probative and excluding might cause grave injustice then that argues for admittance. If the condenser small, or the evidence is tangential that argued for exclusion.
    – Dale M
    Feb 16, 2023 at 6:02
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    @StefanieGauss if excluded then letting the jury see it is a mistrial. But it isn’t automatically excluded.
    – Dale M
    Feb 16, 2023 at 6:03
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    @StefanieGauss the justice system is extremely fair in that the same rules are applied to everyone. Some of those rules may give unfair results in particular cases but there are reasons for them. This particular rule is about balancing the risk of injustice in the specific against injustice (I.e. people doing illegal things to get evidence) in the general.
    – Dale M
    Feb 16, 2023 at 10:45
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If the jury brings in a verdict of "not guilty", even if they do so based on evidence that they should not have considered or for some other improper reason, the defendant is released and cannot be retried. This is required by the Double Jeopardy clause of the Fifth Amendment.

The only known exceptions, when retrial was allowed after a "not guilty" verdict, are a very small number of cases in which the judge or jury was actually bribed by the defendant. See for instance the Aleman case.

If the judge finds out about the improper consideration before the verdict is returned, e.g. because some other juror reports it and the judge is able to confirm it, then the judge may grant a mistrial. The trial is effectively cancelled, but the defendant is not released, and a new trial is started from scratch, assuming the prosecution wishes to go to the trouble and expense of continuing.


A side question is raised as to whether the illegally obtained evidence actually is inadmissible as a matter of law, i.e. whether the judge's ruling was correct. For that, see Can illegally obtained evidence be used in favor of the defendant in a criminal case?

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  • @MichaelHall: In the hypothetical case, the judge did order the jury to disregard it. I assumed that the inadmissibility of the evidence came to light after it was presented; if it was known to be inadmissible beforehand, the judge would not have allowed it to be presented in the first place. Feb 15, 2023 at 17:14
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    @MichaelHall: And it's assumed in the question that the evidence actually was inadmissible. That may be incorrect in reality, though; I think it's quite possible that it would still be admissible to be used by the defense. The main reason illegal prosecution evidence is suppressed is because it violates the defendant's constitutional rights. That issue doesn't arise when the defense uses it. Feb 15, 2023 at 17:16
  • @MichaelHall: See law.stackexchange.com/questions/62348/… for the latter question. Feb 15, 2023 at 17:23
  • @MichaelHall: Well, I don't interpret that as having been part of the question actually asked here, so I don't think it belongs in this answer. It would be appropriate as an answer to law.stackexchange.com/questions/62348/… if I had citations to support it, which right now I do not. Feb 15, 2023 at 17:28
  • Agreed, good point... Thanks. Deleting comments. Feb 15, 2023 at 17:29
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The prior question is whether the evidence is admissible. An attorney might wish to introduce some evidence but the judge may find that the evidence is not legally admissible for some reason (fruit of the poison tree, for example). An attorney might, nevertheless, blurt out something, in which case the judge will instruct the jury to ignore that blurting. However, it well known that a bell cannot be unrung. Chronologically speaking, the first step is to prevent introduction of the evidence by ruling that it is inadmissible. If statement are made that sneak in illegal claims, then the judge will tell the jury to ignore that claim, and could declare a mistrial in an egregious case.

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Aside from other answers... There is also a duty to stop a prosecution once exonerating facts are known.

So if the lawyer simply sits in a conference with the D.A. and plays the recording, the D.A. should say "holy smoke! We did not know that!" And that that point they have a duty to withdraw the charges.

The duty applies to when the facts are known, not when they are admissible.

None of this requires any business in open court. The prosecution can simply walk in and way "we withdraw all charges, your honor" with no explanation needed and the defendant walks. The victim's family would need to be told "New evidence" etc.

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  • My immediate thought is the case shown in this The Good Wife reaction video by Legal Eagle - while they get it a little bit wrong that the testimony did come up in a retrial court and they were not showing a full reveal of the investigative work around it - they do show that if the investigation team decides the evidence makes the sense as the defense makes as an argument, the prosecution should be dropping charges until their following investigation finds more evidence for or against in the case. Feb 17, 2023 at 22:47
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If the defendant's evidence is obtained illegally by a lawyer on the defense team, the evidence may still be used in the Defendant's own defense. It would be evidence against the defense lawyer in a separate trial against the lawyer for a separate eaves dropping offense. Additionally, if it comes out that the defendant was involved or approved of the illegal act in procuring the evidence, the defendant might be tried for illegal actions taken to procure the evidence, which is a separate crime and incident from the original crime he was on trial from.

Additionally, most laws about consent for recording in the U.S. do have exceptions for recordings made in an effort to expose a crime, so any electronic recording procured in this manner that exonerates the defendant could be legal if it implicates the person who was otherwise illegally recorded in a crime.

Finally, if this was illegally obtained, the prosecution must by law disclose it to the defendant. In the United States, the Prosecution must show all evidence it has collected, especially if such evidence would be exculpatory in nature (i.e. Evidence of the Defense's innocence) in order to comply with Constitutional Protections of the Defense's right to examine all evidence against him in a trial. So in the situation where a defense attorney breaks the law in order to record a conversation that exonerates his client, the prosecution must disclose to the defendant that new evidence has come to light in as timely a manner as possible.

This also ignores the process for introducing evidence. The discussion to allow or disallow new evidence to come forward is held away from the jury to preserve their unbiased status. Thus the jury won't know anything about the new evidence or what it proves or disproves.

If the judge refuses to allow it, especially if the evidence is exculpatory, the defendant can appeal the decision if he is found guilty. If it's reasonable that the jury would have changed the verdict had this evidence been introduced. If the appeal finds in the Defendant's favor, the original trial is declared a mistrial. The Prosecution may either refile or drop the case at this point, but the original trial is treated as not happening.

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  • I think these points would greatly improve your answer at law.stackexchange.com/a/62363/576 (which indeed I think is much more the question you are answering, than this one is). However I think citations of procedure or case law would make it more convincing. Feb 15, 2023 at 17:30
  • Possibly material for another question, but since (I believe) the prosecution needs a warrant to record phone calls or equip someone with a "wire", is the defense afforded a similar legal option for obtaining favorable evidence? Feb 15, 2023 at 19:17
  • @MichaelHall The defense is allowed to subpoena individuals for compelled release to the courts records and testimony as well as examine and test any evidence secured by the Prosecution and may use independent labs to verify testing results.
    – hszmv
    Feb 16, 2023 at 13:07
  • Um, well…. By “similar” I meant specifically getting permission to perform electronic eaves dropping or equipping someone with a wire to get a voice recording without the other party’s consent. Feb 16, 2023 at 15:37
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You are asking about "evidence that should be discarded" but then talk about "evidence that was gathered illegally". That's not the same thing at all. Obviously if the evidence should be disregarded, then it must be disregarded. That happens when the police does in illegal search of your home and finds evidence against you, it must be discarded.

But in your situation, does the evidence have to be discarded? I wouldn't think so. Say the police does an illegal search of your home and finds evidence that you are innocent. That must not be discarded. Or evidence that your lawyer found by illegal actions. That must not be discarded, but the lawyer might go to court later for his illegal actions (same as the police officers). You got evidence by torturing a witness? That must be discarded because it is very unlikely to be true evidence.

In your circumstances, I would hope the judge would not tell the jury to ignore the evidence. But if he does, which I would consider wrong, then they have to ignore it.

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In the situation you described, if the jury chooses to consider the illegally obtained evidence and finds the defendant not guilty as a result, the judge may still choose to overrule the jury's decision and impose the original sentence. The judge may argue that the evidence was obtained illegally and therefore cannot be considered in the case.

However, if the judge agrees with the jury's verdict, the defendant could be acquitted and set free.

The legality of using illegally obtained evidence in court varies by jurisdiction. In some places, evidence obtained illegally may be excluded from trial and cannot be considered by the jury. In other places, such evidence may be admissible in certain circumstances, such as if the defendant's constitutional rights were violated.

In cases where the defendant is sentenced to a harsh punishment despite evidence of their innocence, it can indeed seem absurd. However, it is unfortunately not uncommon for wrongful convictions to occur due to various factors, such as prosecutorial misconduct, witness misidentification, and false confessions. It is important for the justice system to continue to improve and work towards minimizing such injustices.

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