Evolution of the Exclusionary Rule

¶ … Evolution of the Exclusionary Rule

For many practicing law today, the Exclusionary Rule seems to be a logical interpretation of the constitutional protections granted in the Bill of Rights. However, while the Exclusionary Rule may seem to be an established component of constitutional law, it is actually a fairly new development. In fact, when it was developed, the Exclusionary Rule was considered an extraordinary remedy. The Constitution does prohibit the government from engaging in certain behaviors in order to obtain evidence. However, nothing in the Constitution suggests how such violations should be dealt with. While there was always the possibility that a defendant could sue for violation of his constitutional rights, the reality is that even a successful lawsuit could not restore a wrongfully convicted criminal defendant. Therefore, the courts, most notably the Supreme Court, established the Exclusionary Rule as a means of dissuading governmental entities from violating the Constitution in their law enforcement practices.

The basic premise of the Exclusionary Rule is that evidence that has been collected in violation of a defendant's constitutional rights is inadmissible in a criminal prosecution of that defendant. The fruit of the poisonous tree doctrine extends the Exclusionary Rule to render inadmissible any evidence that would not have been collected but for the original illegal activity, even if that evidence was not collected in violation of a defendant's constitutional rights. There are exceptions to the Exclusionary Rule, but it will work to prevent the admission of most illegally-collected evidence.

Most people think of the Exclusionary Rule as a judicially constructed rule to help enforce the protections found in the Constitution. This understanding of the Exclusionary Rule, while technically true, does not provide a complete picture of the rule. American constitutional law was largely based on the English law, and English law did provide some protections against the admission of illegally-collected evidence. The English version of the Exclusionary Rule was never as comprehensive as the modern Exclusionary Rule. Moreover, the English rule was developing at around the same time that the colonies were establishing independence, so their overt influence would have been minimal.

The Constitution has always provided a minimal version of the Exclusionary Rule. The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself" (U.S. Const. amend. V). Therefore, a defendant could not be compelled to testify against himself. However, there was not, historically, a way of determining whether or not a defendant had been illegally compelled to provide evidence against himself. In fact, there was almost a presumption that all confessions were voluntary, even when there was significant factual evidence to the contrary. Moreover, even if an involuntary confession was excluded, evidence obtained as a result of that confession was probably considered admissible.

In the United States, the development of the Exclusionary Rule has largely been the result of the development of case law. The first significant case to address the exclusion of illegally obtained evidence was Boyd v. United States, 116 U.S. 616 (1886). In Boyd, a defendant had been compelled to produce his business papers. The Court determined that the compulsory production of those papers amounted to requiring the defendant to provide testimony against himself. The holding in Boyd was limited to the facts in that case. In Bram v. United States, 168 U.S. 532 (1897), the Court held that involuntary confessions were inadmissible. These two early cases stressed the importance of the Fifth Amendment's prohibition against compelled testimony.

However, it took a significantly longer period of time for the United States to develop a more comprehensive version of the Exclusionary Rule, and many states had developed their own heightened versions of the Exclusionary Rule prior to that time. Finally, in 1914, the Court developed a comprehensive and strong version of the Exclusionary Rule. In Weeks v. United States, 232 U.S. 383 (1914), the Court held that evidence obtained in violation of the Fourth Amendment was not admissible in Federal court. However, the Weeks rule specifically did not apply in state court proceedings, where most criminal prosecutions actually occur. Therefore, even though the Court had announced a very strong, very comprehensive Exclusionary Rule, it had little impact on most criminal defendants. This remained the rule for a significant period of time. In Wolf v. Colorado, 338 U.S. 25 (1949), the Court determined that states were not required to adopt the Exclusionary Rule. Finally, in 1961, the Court determined that the states were required to adopt the Exclusionary Rule. In Mapp v. Ohio, 367 U.S. 643 (1961), the Court determined that the Exclusionary Rule had to apply in state court proceedings, not because of the Fourth Amendment or the Fifth Amendment, but because of the Fourteenth Amendment's guarantee of due process.