The Exclusionary Rule: History, Controversy, and Reform

Introduction to the Exclusionary Rule

Within the scope of the legal system in the United States there is a foundational and unique expression of the checks and balances present in the Constitution. Though the laws are collectively called the exclusionary rule, as is standard in criminal law they are really a collective group of decisions — in local, state, and federal courts — that establish a set of principles to protect the defendant from illegal search and seizure and illegal coercion of confession. The foundation of the law is the protection of Fourth Amendment rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Fourth Amendment of the U.S. Constitution)

The exclusionary rule — or rules, more appropriately — provides a set of principles dictating that evidence and/or admissions of guilt obtained illegally will be excluded from criminal trials. What this quite often amounts to is that criminals who are guilty can go free if the evidence needed to convict them is tainted in some manner, having been acquired illegally. Certain exceptions exist, though many argue the exceptions and rules are unclear and are in constant need of redress by the courts (Chun 2000:799; Holland 2000:1107).

Questions and controversies about this issue are many and varied. This paper first examines the history of the exclusionary rule, discusses the controversy over its use and retention, explains the ways in which it affects law enforcement, discusses good-faith violation exemptions, and finally addresses the potential need for change through the addition of compensation to the rulings.

Controversy and History of the Exclusionary Rule

Historically there have been many challenges to the exclusionary rule, largely because many people both inside and outside the legal system do not believe the system is working when seemingly guilty individuals are set free by its application. Yet there are also many other reasons why people have been demanding change, almost as long as the laws have been in place. Another substantial argument is that the effectiveness of the rulings is suspect when they frequently fail to control corrupt law enforcement practices. A comprehensive explanation of the controversy is provided by Dripps in a 2004 article on appellate review of the exclusionary rule published by the Yale Law Journal:

Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. Critics have attacked the exclusion of unconstitutionally obtained evidence for compromising the pursuit of truth in adjudication, for exceeding the constitutional authority of the judiciary, and for fostering police perjury and judicial hypocrisy. Defenders have laid the blame for the "cost" of exclusion on the Fourth, Fifth, and Sixth Amendments that prohibit the acquisition of reliable evidence when complied with, rather than on the exclusionary rule which operates only when these substantive constitutional provisions are violated. Exclusionary rule advocates have insisted on the constitutional necessity for some effective remedy for constitutional violations, and maintain that exclusion offers a far more attractive remedy than reliance on damage actions undermined by valuation problems, immunity defenses, and inadequate legal representation. The Supreme Court seems to have adopted both positions, by continuing to suppress tainted evidence in the government's case-in-chief while also recognizing a host of exceptions to the exclusionary rule. The most obvious of these are the standing doctrine, the good-faith exception, and the impeachment exception. (Dripps 2001:1)

Dripps goes on to discuss the reasons on both sides for the continued debate, noting that limitations clearly exist with all the proposed and de facto alternatives:

The debate goes on because both tort remedies and the exclusionary rule have important advantages and serious drawbacks. Although appropriate reforms could overcome most of the defects with tort remedies, such reforms depend on appropriate legislation. Given the legislative incentives bearing on law-and-order issues, no legislature has yet delivered such reforms, nor is any likely to do so. Moreover, because constitutional violations ordinarily do not inflict the kind of material injury that our tort system compensates, tort schemes are plagued by the difficult problem of evaluating the plaintiffs' damages. Set too high and the damages would overdeter by inhibiting the police from vigorous action in cases near the border separating lawful from unlawful searches and seizures. Set too low and the damages would render the Fourth Amendment nugatory. The exclusionary rule solves the political incentives problem because the Supreme Court imposed the rule as a matter of federal constitutional law. Exclusion also solves the valuation problem, because exclusion comes very close to setting the sanction equal to the government's illegal gain. Exclusion, however, suffers a serious psychological problem. Judges are reluctant to free obviously guilty criminals. Trial judges, therefore, tilt fact-finding against exclusion, while appellate judges give constitutional rights crabbed and grudging interpretations. As a result, it is fair to say that the Fourth Amendment is still underenforced. (Dripps 2001:1)

There are even several legal experts who believe that the exclusionary rule should not only be upheld but strengthened to include racial discrimination as a potential violation by law enforcement in cases where race can be proved as a condition of why an individual was stopped, arrested, and subsequently tried for a given offense. This would effectively link equal protection laws with the exclusionary rule (Holland 2000:1107).

Constitutionally based procedural safeguards such as the exclusionary rule and Miranda warnings, and longstanding evidentiary principles such as the exclusion of propensity evidence, are increasingly viewed as legal "technicalities" that allow violent criminals to escape punishment. They represent not the constitutional mediation of the public's retributive passion but rather devices that impede the search for truth and criminal convictions (Sheft 1995:67).

The recent development of political entities and vocal action groups advocating for victims' rights — likely the most ardent opponents of the exclusionary rule — has also changed the level of the argument, in a sense giving it a human face: that of individual victims who have been forsaken by a system where procedural technicalities freed the accused who likely made them a victim of crime. The President's Task Force on Victims of Crime aptly summarized this view:

[S]omewhere along the way the system has lost track of the simple truth that it is supposed to be fair and to protect those who obey the law while punishing those who break it. You expect the trial to be a search for the truth; you find that it is a performance orchestrated by lawyers and the judge, with the jury hearing only half the facts. (Sheft 1995:67)

The debate over whether the level of rights afforded to defendants is too high will surely continue for centuries; this is just one manifestation of that conflict (Sheft 1995:67). One public debate commentary quotes a leading opponent of the exclusionary rule, who argues that defendants have the wrong kind of rights:

So, with that, let me introduce Akhil Amar for a two-minute overview of the subject for tonight, "Do accused criminals have too many rights?" AKHIL AMAR: Thank you, Nina. So, the short answer is yes, sometimes they do. The longer, more precise answer is: and often they don't. Most precisely still, they have the wrong kind of rights. We have rights right now that often benefit the guilty without helping the innocent and that indeed sometimes make the innocent worse off. Judge Mikva notwithstanding, I still count myself a liberal and I think liberals should really care about protecting innocent people from erroneous conviction, but the current rules that we have often make their plight worse in order to help guilty people escape conviction. (Totenberg 1996)

The manner in which law enforcement is affected by the exclusionary rule is foundational. It requires, some would argue, as much or more forethought to begin an investigation of a criminal matter than it does for the criminal to commit the act. The exclusionary rule dictates almost every aspect of law enforcement — from police action to judiciary results — on the part of both the defense and the prosecution, not to mention the judge. Without such a rule there would likely be far more violations of the Fourth Amendment rights of individuals, yet many are asking whether it is time for a change in the manner in which those violations are sanctioned.

Law Enforcement Effects

An important principle of twentieth-century American jurisprudence is that evidence acquired through improper conduct by the state cannot be used to convict a criminal defendant. The United States, however, is the only industrial democracy — common law or otherwise — in which courts must exclude tainted evidence in criminal trials. As Osborne explains:

The U.S. Supreme Court decisions establishing and expanding on this principle have collectively come to be known as the "exclusionary rule." Although the rule had its origins in arguments about the morality of obtaining a conviction while relying on improperly obtained evidence, its primary modern justification is that it deters illegal conduct by the state. However, an unexamined premise of this belief is that if illegally acquired evidence may be thrown out, decreasing the probability of conviction, then the police, prosecuting attorneys and other law-enforcement officials have an increased incentive to obey the rules... improper conduct is assumed to be socially costly. Illegal searches, fabricated confessions, and other violations subject to the exclusionary rule are assumed to be worthy of deterrence in their own right. (Osborne 1999:381)

Osborne goes on to argue that even though the exclusionary rule is unique, constitutionally founded, and in many ways effective, it is not effective enough to resolve the issues in a complicated criminal court system that is purportedly tough on crime:

The question to be answered is how the rule performs in deterring such misconduct. The answer, based on principal-agent analysis, is that absent a carefully crafted compensation rule for those personnel, it performs poorly. The rule is questionable not just because of any costs associated with lost convictions but because it does not sufficiently deter law-enforcement violations. (Osborne 1999:381)

Osborne would have the exclusionary rule amended to include a compensation provision, whereby the accused is compensated in some way for any found violations of the Fourth Amendment. This raises the obvious questions of how much compensation and paid by whom. If Osborne has his way, the individual officers and departments who committed the alleged violation would bear responsibility. As tort liability is challenged in every other arena of law, one must ask whether it would be wise to introduce tort principles into an area where they have never previously applied. Do officers and departments not already feel as if the defendants they work hard to arrest already have more rights than the victims those defendants harmed?

The historical impact of the rule on law enforcement is illustrated vividly by the reaction to Mapp v. Ohio. In Pennsylvania, a young Philadelphia assistant district attorney (and future U.S. Senator), Arlen Specter, left little doubt that the so-called alternative remedies to the exclusionary rule had had virtually no effect prior to that decision:

Police practices and prosecution procedures were revolutionized in many states by the holding in... Mapp v. Ohio that evidence obtained from an illegal search and seizure cannot be used in a criminal proceeding.... [There are indications] that the imposition of the exclusionary rule upon the states is the most significant event in criminal law since the adoption of the Fourteenth Amendment.... Mapp has rewritten the criminal law treatise for states which had admitted evidence regardless of how it was obtained. (Kamisar 2003:119)

Historically, the rule has a long history, and as experts point out, the original intent was not to deter criminal behavior on the part of the state but simply to uphold the Fourth Amendment rights of the accused. The principle of excluding evidence obtained in violation of constitutional rights can be traced to Weeks v. United States, 232 U.S. 383 (1914). The Supreme Court overturned the defendant's conviction, ruling that government efforts to convict a defendant could not be "aided" by evidence obtained through a warrantless search of the defendant's home by a federal marshal. The principle was extended to illegal searches entered into evidence in state courts in Mapp v. Ohio [367 U.S. 643 (1961)], to verbal evidence obtained in the course of a warrantless search in Wong Sun v. United States [317 U.S. 417 (1963)], and to confessions obtained without informing the defendant of his constitutional right not to incriminate himself in Miranda v. Arizona [384 U.S. 436 (1966)].

The deterrence principle was completely absent in Weeks, with the Court deriving the rule as necessary to make the Fourth Amendment meaningful, but was included as a rationale in Mapp and subsequent decisions. In 1974, deterrence became the centerpiece of exclusionary-rule jurisprudence in United States v. Calandra [414 U.S. 338 (1974)]. The putative trade-off between deterrence benefits and costs of erroneous trial results has motivated the more recent carving out of "good faith" exceptions. United States v. Leon [468 U.S. 897 (1984)] established the principle that excluding evidence obtained with a facially valid search warrant that was later ruled invalid served no deterrence purpose. The same logic is found in Nix v. Williams [467 U.S. 431 (1984)], in which the Court held that evidence that would have been inevitably discovered absent constitutional violations should be admitted. In Arizona v. Evans [514 U.S. 1 (1995)], the Court reasoned that a court clerk whose error was challenged by the defendant was unlikely to be deterred by exclusion because of his tenuous relation to frontline law enforcement (Osborne 1999:381–382).

The effect on law enforcement can clearly be seen in this brief historical outline. The development of probable cause standards, the requirement to inform arrested parties of their rights, the obtaining of warrants to search persons or property, and more recently the development of allowable exemptions such as the presence of security guards or media crews during the serving of a search warrant all flow directly from this body of jurisprudence.