By: Adam Ilyas – Executive Director of Yuris Muda Indonesia


Exclusionary Rules is a term known in American law which originates from the doctrine of “Fruit from the poisonous tree” which means that evidence obtained illegally cannot be used.

The Exclusionary Rules principle actually exists and has been in effect since 1914 in the case of weeks vs. united states but the use of the term Exclusionary Rules became known when it was mentioned in the Mapp Vs Ohio case in 1961. Based on the Mapp Vs Ohio case, the term Exclusionary Rules contains 4 (four) violations, namely: 1). Testimony obtained against the law; 2). Testimony obtained in violation of the 5th and 6th Amendments relating to the principle of Non-Self Incrimination; 3). Search and seizure contrary to the 4th Amendment relating to the protection of private property rights; and 4). Other evidence obtained against the law whose use may violate the principle of Due Process of Law.

There are two approaches related to the legitimacy of these exclusionary rules, namely the first is a normative approach, and the second is a factual approach. The normative approach focuses on prohibiting law enforcement from using evidence obtained from unlawful means, while the factual approach focuses on the understanding that setting aside evidence obtained illegally can provide a deterrence effect to law enforcement. This understanding adheres to the adage “it is better to acquit 1000 guilty people than to punish 1 innocent person”, confirmed by the Supreme Court’s statement which stated that the government (in this case the police) was not allowed to profit from its own mistakes.

In the judicial system, the existence of evidence will determine the legal decisions taken by judges. Whereas in the trial before the judge gives a verdict, it is always preceded by the examination of witnesses and other evidence that is considered to be able to support the course of the trial process, especially in criminal cases. In the Indonesian legal system, evidence and evidence are two different things.

The terminology of evidence that is not found in the Criminal Procedure Code causes a legal vacuum that can complicate the examination and proof process or often does not provide legal certainty for the suspect/defendant because there are no rules governing “legitimate evidence”. However, it can be defined that evidence is movable or immovable, tangible or intangible objects that have been confiscated by investigators for the purposes of examination at the level of investigation, prosecution, and examination in court.

While evidence is everything that has to do with an act, where the evidence can be used as evidence in order to raise the judge’s belief in the truth of a criminal act that has been committed by the defendant.

Regarding the strength of evidence, evidence does not have the power of proof, unless it can then be identified by evidence. For example, a gun used to kill will have evidentiary power if it is acknowledged by the defendant’s testimony. So, the evidence cannot stand alone but must be given testimony by witnesses.


It can be said that evidence is evidence that speaks for itself, and proves evidence to make it speak. Although in Law no. 8 of 1981 concerning the Criminal Procedure Code does not mention the principle of Exclusionary Rules explicitly, but it can be interpreted in article 184 of the Criminal Procedure Code that the principle of Exclusionary Rules is contained, which states: “Legal evidence is:

a. Witness testimony:
b. Letter;
c. Instruction;
d. Defendant’s Statement.”

The existence of the phrase “legitimate evidence” means that every piece of evidence as regulated in Article 184 of the Criminal Procedure Code must be valid evidence, both in terms of how to obtain it and the type of evidence. With the clear rules regarding the exclusionary rules principle in Indonesia, law enforcers should interpret the phrase “legitimate evidence” to mean that invalid evidence must be set aside.

Therefore, it is known that the intent of the legislator is to provide protection to suspects or defendants from being tried with invalid evidence. This is also contained in the decision of the Supreme Court No. 1531 K/Pid.Sus/2010 which states: “That’s why the legislators don’t justify the handling methods as in the a quo case, because the legislators have thought about and anticipating that at one time there will be a practice of engineering evidence/evidence to make people a suspect.

If this is justified, it is easy for people to become suspects, so the police can use them as a means of extortion, etc..” However, in practice there are still a lot of applications of this “legitimate evidence” being sidelined and clashed with the principles of a simple, fast, and expensive trial. light as regulated in Article 2 paragraph (4) of Law no. 48 of 2009 This principle means that a speedy trial is needed before a judge’s decision is made and this should not be separated from the realization of human rights.

It is considered a conflict with this principle because if the evidence/evidence obtained illegally is not considered at all, it will hinder the judicial process. As previously stated, in Indonesia, evidence obtained illegally does not necessarily make the evidence unsubmittable, only the “degree” of the proof is reduced. This opinion shows that between Dass Sollen and Das Sein are not in harmony or even contradictory.


The principle of exclusionary rules is a practice that is generally found in countries that adhere to Common Law and Civil Law legal systems. In criminal procedural law in Indonesia, there are no explicit provisions regarding exclusionary rules if evidence is found illegally. The existence of the exclusionary rules principle is an interpretation of the phrase “valid evidence” in Article 184 of the Criminal Procedure Code that the phrase “legitimate” is not only a type of evidence but also by acquisition. Although there are no explicit provisions, the principle of exclusionary rules has been applied by judges in Indonesia, one example is in the Supreme Court decision No. 1531 K/Pid.Sus/2010.

The decision can be used as a basis for judges’ considerations to apply the principle of exclusionary rules but does not have binding legal force for other judges. Therefore, setting the principle of exclusionary rules in Indonesian criminal procedure law is an unavoidable necessity. The amendment to the Criminal Procedure Code is an important momentum to regulate the principle of exclusionary rules in the RUU HAP. Basically the HAP Bill has tried to accommodate the provisions on exclusionary rules, but these arrangements are still simple. The exclusionary rules setting must contain elements of the party who examines and validates the evidence as well as further actions if exclusionary rules are applied to the evidence.


  • Ilyas, Adam. “PRAKTIK PENERAPAN EXCLUSIONARY RULES DI INDONESIA.” Masalah-Masalah Hukum 50.1: 49-59.
  • Latifah, Marfuatul. “Perlukah Mengatur Prinsip Exclusionary Rules of Evidence dalam RUU Hukum Acara Pidana?(Should We Regulate Exclusionary Rule Principle in the Criminal Procedural Bill?).” Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan 12.1 (2021): 101-122.