Lecture 8: The Exclusionary Rule
Functions of Punishment
- Deterrence, behavior control
- Quarantining of dangerous people
- Expression of collective anger, outrage
- Substitution of public penalty for private vengeance
- Moral education, both of offender and public
- Sustaining a conventional practice, by cancelling unfair advantages to violators
I. The Fourth Amendment in its Original Context
- Primarily concerned with general warrants issued to tax and customs officials.
- Assumed that people would not tolerate warrantless searches.
- No organized police forces: victims brought charges against their attackers.
I. History of the Exclusionary Rule
- Weeks v. U. S. (1914): exclusionary rule applied to illegal searches by federal officers.
- Wolf v. Colorado (1949): 4th amendment, but not the exclusionary rule, applied to states.
- Mapp v. Ohio (1961): exclusionary rule applied to states
- Linkletter v. Wallace (1965): exclusionary rule not to be applied retroactively
III. Deontological Defenses of the Exclusionary Rule
- Seizing the evidence and accepting the evidence in court are parts of a single governmental action: illegality of first part contaminates the second.
- Admitting the evidence is inevitably to condone and encourage illegal searches.
- The government must set an example of scrupulous abiding by the law.
- The courts honor and underscore the value of the 4th amendment by paying such a high price to protect it.
- Exclusion asserts judicial independence from the executive branch.
IV. Consequentialist Defenses
- Deters illegal searches and seizures. Forces police and prosecutors to develop procedures and training regimens that make violations rare.
- No other alternative is available to the courts. The Bill of Rights is addressed to the courts -- they have no other control over activities of police.
V. Objections to the Rule
- Little or no empirical evidence that it actually deters police illegality. Most police work is not intended to result in prosecutions.
- Causes considerable delay and waste of judicial resources. Between 20-35% of court time is spent on motions to suppress evidence.
- Provides absolutely no protection to innocent victims of illegal searches.
- Encourages perjury on the part of police, to cover up technical violations.
- Grants police the unlimited ower to grant immunity to any criminal, by deliberately engaging in an illegal search. Could lead to corruption.
- Forestalls the development of alternative protections of 4th amendment rights.
VI. Alternatives to the Exclusionary Rule
- Prosecution of police for trespass. Prosecutors, juries are reluctant.
- Civil tort action against officers. In many states, they enjoy immunity.
- Administrative discipline by police internal affairs. Not objective?
- Independent, citizen review board, with disciplinary powers. No experience in U. S.
- Charging police under federal civil rights statutes. No experience.
VII. The Leon Decision: "Good Faith" Exceptions
- Evidence is admissible if a "reasonably trained" police officer would have had good reason to believe that the search was legal (e.g., that the warrant was valid).
- Standard is objective: doesn't depend on what the officer actually believed.
- Objection: encourages a "see-no-evil" approach on part of officers: they are OK so long as they don't encounter any evidence or advice that the search will not be legal.
- Encourages "magistrate shopping". Can use evidence, no matter how unreasonable the judge was in granting the warrant.
VIII.Interpreting the Bill of Rights
- Learned Hand argued, in using history, we look for "general purposes, not specific practices."
- Profound differences in historical context. When the Bill of Rights was passed, there were no police, no wiretapping, no eavesdropping devices.
- What is the appropriate level of generality? Anti-federalists were primarily concerned with revenue collectors, not crime investigators.
- What to do when the Constitution provides no enforcement mechanism, or relies (implicitly) on one (popular resistance) that has proved inadequate?
- Compare the 5th Amendment ban on self-incrimination. If taken literally, it refers only to testimony in "criminal cases", not to grand juries, congressional committees, police interviews.
- Is there an ideological aspect? Contrast expansive interpretation of 4th and 5th amendments with restrictive interpretation of the 2nd or 10th.
Last updated February17, 1999
Created by: Robert C. Koons
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