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Why Does the United States Have an Exclusionary Rule?:
Adam Liptak has an interesting story in today's New York Times about the so-called exclusionary rule, the rule of criminal procedure instructing (in simplified form) that evidence acquired by the police in violation of investigatory rules cannot be used in a prosecution. The United States is essentially unique among nations in having a mandatory exclusionary rule: The obvious question is, why? Liptak's article includes a short quote from me on this issue, and I thought I would blog some more thoughts on it.

  There are a few reasons why the United States has an exclusionary rule, but I think the most important is that criminal procedure rules in the United States are mostly judge-made. The courts make the rules in the form of interpretations of the Fourth, Fifth, Sixth, and Fourteenth Amendments. That's largely unique among nations. In most countries, investigative rules come mostly from legislatures, not courts.

  In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature's control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law.

  In contrast, the exclusionary rule does not require the cooperation of any other branches. The same courts that create the rules control the remedy. As a matter of history, I think that explains why we have an exclusionary rule: judges needed a way to enforce judge-created rules even when they were unpopular and didn't have buy-in from other branches. The exclusionary rule provided a way — and perhaps the only way — to do that.

  Finally, let me stress that this explanation is descriptive, not normative. That is, it describes why I think judges did what they did, but it doesn't take a position on whether the judges did so appropriately or whether they read the Constitution correctly. If there is interest in the normative question, let me know in the comment thread and I'll consider a follow-up post.
MarkField (mail):
I'm sure you mean "blog some thoughts" and not "bog some thoughts".

I always saw the exclusionary rule as a by-product of the separation of powers. It's a way for the courts to tell the legislature and executive that those two branches cannot corrupt what the courts see as their essential function of impartial decision-making.
7.19.2008 5:22pm
MJG:
I'd be very interested in the normative question. I definitely think that the current conservatives on the Supreme Court believe in curtailing the exclusionary rule - or at least drawing a fence around where it currently applies.

And, I know you were not dealing with the normative question (and I fear the ol' "is"/"ought" debate), there are many things in our criminal justice system not shared by other countries. For example, in the UK anonymous witnesses are often allowed.

In any event, I do bristle whenever the argument against the exclusionary rule never goes farther than observing the "heavy costs of excluding probative evidence" and the ol' Cardozo saw that "the criminal goes free because the constable has blundered." Of course, every *case* that presents the exclusionary rule issue will often deal with some guilty-seeming person. Yet, the rule is designed to protect the rest of us, since if the police engage in an unreasonable search or violate our Miranda rights, but we produce nothing probative of guilt, we are let free. Of course we're told that we might have a 1983 action, but I also bristle at the notion that it is an adequate substitute to the deterrence provided by the exclusionary rule, particularly in light of qualified immunity.

I also think, in terms of the Constitutional legitimacy of judge-made rules, the exclusionary rule ranks highly since accused persons are assuredly a politically powerless group. That can be easily inferred from the fact that nearly every politician fears being labeled "soft on crime," and it is one of the biggest problems in State Judicial Elections.
7.19.2008 5:26pm
tarheel:
Primary issue aside, this kind of article is what has me excited to see what Liptak does as Supreme Court reporter for the Times.
7.19.2008 5:31pm
OrinKerr:
Mark,

Thanks, corrected.
7.19.2008 5:32pm
OrinKerr:
this kind of article is what has me excited to see what Liptak does as Supreme Court reporter for the Times.

Agreed. I thought it was pretty cool that he would write a piece on this.
7.19.2008 5:33pm
Mahan Atma (mail):
Liptak claims:

""In the United States, by contrast, evidence against criminal defendants is routinely and automatically suppressed where police misconduct is found."


That shows an incredible degree of ignorance about criminal law. Nothing could be further from the truth.
7.19.2008 5:34pm
Mahan Atma (mail):
"Primary issue aside, this kind of article is what has me excited to see what Liptak does as Supreme Court reporter for the Times."


You've got to be kidding me. Maybe if you're a prosecutor who doesn't mind blatant falsehoods as long as they're favorable to the prosecution.
7.19.2008 5:36pm
Soronel Haetir (mail):
Scalia's statement is somewhat scary. The exclusion rule works because unlike civil suits or criminal prosecution it is both fairly certain and somewhat straightforward. Unless we were to move to some model removing discretion from the prosecutorial choice set there would always be the danger that a prosecutor would ignore violations because they produce much more useful results against groups that the public disfavors.

Civil suits suffer the same way, a convict is highly unlikely to get a favorable jury result, even assuming that he has the resources to bring the action to begin with.
7.19.2008 5:40pm
Displaced Midwesterner:
I think your descriptive explanation is pretty much dead on. I would like to second the call for some posting on the normative aspects of the exclusionary rule, particularly what your thoughts are on how well it has worked, where it has failed, and what a better idea would actually be. In theory at least the courts have generally said that the exclusionary rule was not a constitutionally mandated remedy and that they would accept a legislatively imposed remedy that was as effective. It would be interesting to get some more debate going on whether that would be possible and would it would look like.
7.19.2008 5:44pm
Mahan Atma (mail):
The Crime and Federalism blog gets it right regarding Liptak's egregious statement:

Media Ignorance of Exclusionary Rule

I once externed for a federal judge with a long history handling criminal cases. I counted up the percentage of times he granted a motion to exclude, and it was about 1 in 50, despite the frequent presence of police misconduct. And he was considered a very fair judge, not exactly a prosecutor's judge.
7.19.2008 5:44pm
Displaced Midwesterner:
Oops: should be "what it would look like." Although "would it would look like" has a certain ring to it.
7.19.2008 5:45pm
MarkField (mail):

The United States is essentially unique among nations in having a mandatory exclusionary rule.


Fortunately, our Supreme Court would never consider the practice in other nations for purposes of interpreting our own Constitution.
7.19.2008 5:52pm
Mahan Atma (mail):
"The rules governing civil lawsuits are largely under the legislature's control."


And yet it is the judicial branch which has made successful civil suits nearly impossible through the doctrines of qualified immunity and Heck v. Humphrey (requiring the dismissal of the suit if the plaintiff was convicted).
7.19.2008 5:54pm
AK (mail):
I agree with all the major arguments in favor of the exclusionary rule. However, it has no basis in the Constitution and its adoption was a judicial abomination.

The Supreme Court should get rid of it, and Congress should amend the Federal Rules of Evidence to exclude evidence gathered in violation of the fourth amendment. The states should do likewise, if they don't already.
7.19.2008 5:57pm
Laura S.:
Its interesting that other countries take the position that once the facts are known; those are the facts and that's the only thing that matters.

But I've never considered the rule unusual. Chain-of-custody is an important element to the admissibility of evidence at trial. e.g., the police surely have quantities of drugs available which they could produce in a courtroom. What's important from the court's perspective is that an officer declares that he found that particular evidence at a particular location. This is accepted as fact b.c. officers of the law are given deference by the court.

Now think about this: the 4th amendment is law. Violations thereof consequently impeach the officers and hence the chain-of-custody. This is why the exclusionary rule becomes unstable when the collecting officer acts in good-faith but nonetheless on the basis of illegal actions of a second officer. In such a case the court engages in a review of whether collusion is a reasonable possibility.
7.19.2008 6:04pm
Katl L (mail):
In Venezuela the constitution enshrine the exclusionary rule. art 49
"Serán nulas las pruebas obtenidas mediante violación del debido proceso."
7.19.2008 6:22pm
Katl L (mail):
And more in the criminal law
Artículo 197. Licitud de la prueba. Los elementos de convicción sólo tendrán valor si han sido obtenidos por un medio lícito e incorporados al proceso conforme a las disposiciones de este Código.

No podrá utilizarse información obtenida mediante tortura, maltrato, coacción, amenaza, engaño, indebida intromisión en la intimidad del domicilio, en la correspondencia, las comunicaciones, los papeles y los archivos privados, ni la obtenida por otro medio que menoscabe la voluntad o viole los derechos fundamentales de las personas. Asimismo, tampoco podrá apreciarse la información que provenga directa o indirectamente de un medio o procedimiento ilícitos.
7.19.2008 6:30pm
TGGP (mail) (www):
There is a good discussion of the exclusionary rule in Bruce Benson's Enterprise of Law. He says that the police-unions are too powerful to directly punish officers for violating the law by conducting illegal searches, so that was an available remedy for courts in the 60s. The result was increased crime-rates and a backlash in which judges gave ways for police to get around those rules and present evidence more easily.
7.19.2008 6:31pm
Mahan Atma (mail):
Looks like the NYT fact checkers are on vacation.
7.19.2008 6:32pm
gwinje:
I'd also be interested in a normative post.
7.19.2008 6:33pm
John R. Mayne (mail):
I'd be very interested in Professor Kerr's normative view on the exclusionary rule.

In my experience, evidence is excluded with some frequency when the police either misjudge a search situation, or simply err; this is surely an undesirable outcome for evidence of crime seized.

The problem is that you need a deterrent effect; I have little doubt that without one, more violations would happen. Whether other deterrents would be as effective and appropriate is unclear to me.

--JRM
7.19.2008 6:48pm
Larry Sheldon:
IANAL.

I have always thought that in some dimension the exculsionary rule must be related to ex turpi causa non oritur actio or bring the fruit of a poisoned tree, or "you shall not profit from wrong doing" or something.

And much as I tend to be a "Lawn Order", throw the book at them kinda guy, I think the police and the prosecution have to be held to impossibly high standards. "I'm sorry, we got the wrong guy" doesn't cut it.
7.19.2008 6:56pm
p. rich (mail) (www):
Why should there necessarily be a relationship of any kind between evidence discovered and the actions which led to its discovery?
7.19.2008 7:08pm
Nigel Kearney (mail) (www):
I'd like to second (or third, or fourth) the request for a discussion of the normative issue.

It seems to me that the remedy should be for those who are unreasonably searched (or other breach) and no evidence is found. I don't care how many unreasonable searches lead to incriminating evidence being found. It would be better to have an easy to obtain remedy for innocent people and no remedy for guilty ones.
7.19.2008 7:14pm
Cornellian (mail):
And much as I tend to be a "Lawn Order", throw the book at them kinda guy . . .

Who among us can doubt the power of a well-kept lawn?
7.19.2008 7:15pm
Sam Hall (mail):
"Put simply, the exclusionary remedy is the one remedy that judges can completely control."

The judge could put the police officer(s) in jail for contempt of court. That would certainly be a better result than letting the guilty go free.
7.19.2008 7:16pm
Cornellian (mail):
I agree with all the major arguments in favor of the exclusionary rule. However, it has no basis in the Constitution and its adoption was a judicial abomination.

The Constitution says almost nothing about remedying any violation of a constitutional right. It says you have the right to a jury trial, but not what happens if the government refuses to give you one. It says Congress shall not infringe your right to freedom of speech, but not what happens if Congress goes ahead and infringes that right anyway.
7.19.2008 7:17pm
Bender (mail):
I was unaware that Venezuela uses a version of the exclusionary principle. I have read that the Phillipine Government does also (see, e.g., http://www.chanrobles.com/ cralawgrno146284-86jan202003.html). A simple question: Do the USA, Venezuela, and the Phillipines actually experience much lower levels of police and prosecutorial misconduct in the investigation and ajudication of crimes than do other countries without the principle? If not, the exclusionary rule is useless.
7.19.2008 7:27pm
Dave N (mail):
Katl L.

My Spanish is rusty, could you please provide a translation?

I also echo the calls for a normative discussion.
7.19.2008 7:33pm
MarkField (mail):

There is a good discussion of the exclusionary rule in Bruce Benson's Enterprise of Law. He says that the police-unions are too powerful to directly punish officers for violating the law by conducting illegal searches, so that was an available remedy for courts in the 60s. The result was increased crime-rates and a backlash in which judges gave ways for police to get around those rules and present evidence more easily.


That could hardly explain Weeks (1914), and I doubt it explains Mapp. Best I can tell (and that's reading between the lines a bit), the reason the Court ended up extending the rule to the states was a belief that the states were applying a double standard, ignoring the rules when the suspect was black, following them when he/she (in Mapp's case) was white. By extending the rule to the states, the courts could supervise this.


It would be better to have an easy to obtain remedy for innocent people and no remedy for guilty ones.


Why not the guilty? Don't they have rights too? If not, I'm not sure what the word "right" means.

Besides, suppose you established a financial penalty of some sort for the not guilty alone. Doesn't that create an incentive for juries and judges to find people guilty in order to protect the public fisc?
7.19.2008 7:34pm
Tomm:
Bender: That ignores the reasons a country may have enacted an exclusionary principal, which may include rampant police misconduct.
7.19.2008 7:38pm
Dave N (mail):
Bender asked:
Do the USA, Venezuela, and the Phillipines actually experience much lower levels of police and prosecutorial misconduct in the investigation and ajudication of crimes than do other countries without the principle?
This might best be saved for the normative thread (which I am sure is coming) but one distinction might be between nations using an inquisitorial system for criminal prosecution (most of the world, including Venezuala and the Phillipines) versus an adversarial system.
7.19.2008 7:43pm
Perseus (mail):
That's largely unique among nations.

Using an adverb to make "unique" a matter of degree is a pet peeve, but maybe I'm just one of the few remaining absolutists.
7.19.2008 7:45pm
Tomm:
People who use 'pet peeve' are annoying.
7.19.2008 7:51pm
NowMDJD (mail):

Bender: That ignores the reasons a country may have enacted an exclusionary principal, which may include rampant police misconduct.

Non-lawyers depend on the government to provide their persons and property with safety. At the end of the day, the law is a just an institution that people have developed to serve human purposes. If the law doesn't help people, then p[sople will ignore or trash the law.

Of course, the government, as well as criminals, may threaten persons and property, and the molders of the law have to balance the threat from each.

I'm an agnostic on the exclusionary rule. Philosophically, I'm basically a utilitarian and legal positivist, and my opinions about the exclusionary rule would be base on empiric studies on its effects and effectiveness.
7.19.2008 7:55pm
Mike& (mail):
In my experience, evidence is excluded with some frequency when the police either misjudge a search situation, or simply err; this is surely an undesirable outcome for evidence of crime seized.

I'd be interested in your definition of "with some frequency."

My understanding of the law is this: When police "simply err," so long as the error is made in good faith, the good-faith rule prevents exclusion.

Is my view of the law incorrect? If so, how so?

In what percentage of cases do you think evidence is excluded because of a Fourth Amendment violate?
7.19.2008 7:56pm
Johnny44 (mail):

It seems to me that the remedy should be for those who are unreasonably searched (or other breach) and no evidence is found. I don't care how many unreasonable
searches lead to incriminating evidence being found. It would be better to have an easy to obtain remedy for innocent people and no remedy for guilty ones.

If the police beats a suspect to confess a crime, and the fruit of the violation is a dead body, the guilty should essentially be convicted on evidence acquired through torture?
Law enforcement then becomes easier, since doing police work only requires torturing unpopular suspects.
Those who reject the exclusionary rule on the broad and sweeping justification that truth rather than method is the only important goal, might care to explain how Brown v. Mississippi and other coerced confession cases should come out without the exclusionary rule.
An exclusion of coerced confessions can't be distinguished upon the rationale that torture is always likely to produce unreliable evidence.
7.19.2008 8:00pm
gifted:
I figured the rule drawn from the amendments mentioned, as a guard against corruption and abuse, as the amendments are intended. There should be other remedies though, which the court could grant by using the 1st amendment "petition" right to sue offices or officers who abuse, but the charge never makes trial to have the evidence suppressed.
7.19.2008 8:09pm
neurodoc:
"That's largely unique among nations."
Using an adverb to make "unique" a matter of degree is a pet peeve, but maybe I'm just one of the few remaining absolutists.
So, how do you feel about "essentially unique"?
7.19.2008 8:19pm
Kirk:
Nigel,
It would be better to have an easy to obtain remedy for innocent people
That's simple--I'd like the remedy be (a) to have my time (and peace of mind) back, and (b) to have all my stuff in the location and condition exactly like it was before the police started searching; if the slightest evidence remains that they tore apart my room or car in an unwarranted fashion, then I haven't been made whole on this aspect yet. You might somewhere find a department that can pull off (b) with some regularity, but really (a) is literally impossible.

Well, so maybe prevention and deterrence really is the better course here.
7.19.2008 8:23pm
Mahan Atma (mail):
"So, how do you feel about 'essentially unique'?"


It's a bit like saying, "She's essentially a virgin."

It's either unique, or it isn't.
7.19.2008 8:48pm
trad and anon:
What do countries without the exclusionary rule do? Do the accused in those countries have any meaningful remedy for police violating their constitutions to obtain evidence?
7.19.2008 8:53pm
neurodoc:
An exclusion of coerced confessions can't be distinguished upon the rationale that torture is always likely to produce unreliable evidence.
Right, an exclusion of coerced confessions can't be distinguished upon the rationale that torture is always likely to produce unreliable evidence. But if there is little or no evidence other than a confession obtained through "torture," that confession will be more suspect than if abusive methods had not been used to elicit it.

Also, there are forms of coercion not so egregious and offensive to general notions of justice as "torture," that is physical or mental abuse, e.g., the famous/ infamous "Christian burial" case in which a police detective inveigled the suspect to disclose where he had dumped the child's body, though the defense attorney had been told his client wouldn't be interrogated until the attorney could speak with his client. And confessions are often excluded because a court concludes that the suspect was not properly advised after they are arrested of their right to remain silent and confer with an attorney ("Mirandaized") before they are questioned.
7.19.2008 9:02pm
Comments to a blog post: step away from the editor's pen:
Why someone feels the need to point out a typo, or highlight an error in diction, is beyond me in the context of a blog comment post. These people aren't filing a brief before the Supreme Court, so give it a rest already. Even if it is your pet peeve, have the courtesy to keep it to yourself rather than trying to play hall monitor.
7.19.2008 9:08pm
Mahan Atma (mail):
"And confessions are often excluded..."


I would hardly say this occurs "often".
7.19.2008 9:13pm
neurodoc:
It's a bit like saying, "She's essentially a virgin."
A clever lawyer, one capable of finding ambiguity in "is," might argue that "virgin" is not an absolutely precise term, and thus allows some semantic play. But "unique" can never mean other than singular and be open to semantic play, can it?

(BTW, it seems that Louise Ciccone Ritchie may see herself as "essentially a virgin," since she goes around crooning about how for her it still "feels like the first time.")
7.19.2008 9:26pm
neurodoc:
neurodoc: And confessions are often excluded because a court concludes that the suspect was not properly advised after they are arrested of their right to remain silent and confer with an attorney ("Mirandaized") before they are questioned.
Mahan Atma: I would hardly say this occurs "often".
Would you accept, "When confessions are excluded, it is often because a court has concluded that the suspect was not properly advised..."? I doubt that more often a confession is excluded because a court believes the confession was elicited through torture than because the accused was not advised of his/her right to remain silent.
7.19.2008 9:41pm
MarkField (mail):

it seems that Louise Ciccone Ritchie may see herself as "essentially a virgin," since she goes around crooning about how for her it still "feels like the first time."


From her lips to A-Rod's, er, um, ears.
7.19.2008 9:47pm
Mahan Atma (mail):
"Would you accept, "When confessions are excluded, it is often because a court has concluded that the suspect was not properly advised..."?"


Sure, I just don't want people to get impression that it happens all the time, like Liptak seems to think re exclusion. I guess he gets his ideas about criminal law from "Law &Order".
7.19.2008 10:01pm
neurodoc:
From her lips to A-Rod's, er, um, ears.
She was the female lead in the movie version of Evita, so why shouldn't Louise be the female lead in a movie remake of Damn Yankees? I think she'd be a natural as Lola, and it should be easy enough to change the original story line just a bit to accommodate A-Rod in the role of an all-star brought low by sexual temptation. Indeed, I think they're in rehearsals even as we speak.

(OT? Well then, maybe we can work Roger Clements in somehow and argue over whether any of the evidence against him should be excluded if he is ever prosecuted.)
7.19.2008 10:12pm
Steve2:
Professor Kerr, I too would be interested in a normative post, particularly since (like Laura S), I'd never thought of the exclusionary rule in terms of being a remedy for 4th Amendment violations in the sense of providing redress for the violation (particularly against innocents) or preventing further violations (particularly against innocents), but rather as stemming from a conclusion "Evidence illegally obtained is inherently untrustworthy", and thus excluded. Basically, I've always taken the 4th Amendment Exclusionary Rule to be justified as a matter of "Evidence illegally/unconstitutionally obtained is per se excluded under FRE 104(b)" - but that appears not to be the case.
7.19.2008 10:34pm
byomtov (mail):
Indeed, I think they're in rehearsals even as we speak.

Rehearsals? Is that what you call it?
7.19.2008 10:42pm
George Weiss (mail) (www):
"There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches."

Shenanigans!

This is clearly not true regarding lawsuits. Even where the US congress has not created a right of action for the violation of US constitutional rights by the Federal Government, the Supreme Court (the judiciary-by itself) has done so anyway-in US v. Bivens. Presumably, even if the Congress has not created 18 usc 1983 for suing for state violations of US constitutional rights, there would be an analogous case to Bivens-but the courts already have their cooperation there.

the reason we don't use lawsuits to enforce the 4th amendment is that most violations of the fourth amendment would not make very good tort suit becuase the damages are very very small re the search. Take a cop who does a full search of a vehicle without a warrant, probable cause, consent, or any of the other exceptions that apply to a vehicle search. Suppose he finds crack.

two possibles result:

if he is guilty:

the "damage" to the defendant cannot be that he will now go to jail-since that is his fault anyway-and almost every legal theory recognizes criminal acts as an affirmative defense in tort. (i.e. im probably not laible, even in strict liability for my product, when the plaintiff has used my product illegally).

if he is not guilty: then there is no damage-since he never went to jail. There is probably no way to prove his attonery's fees would not have been incurred in the case either.

so wherther guilty or not guilty-there is no damage from the "going to jail" result of the 4th amendment violation. No damage-no tort.

that only leaves us with the "damage" of the actual search. most searches don't actually break property-they may make a minimal mess-but im guess most people with crack in their car don't have very neat cars. in any case-i doubt the cost of cleaning it up (in the dozens of dollars) would make a civil case. even small claims courts in this country usually require demand for at least $100-and the non refundable filing fee is usually about that anyway.

As far as the use of criminal investigations and internal discipline to police the 4th amendment-that is a little like saying we should simply rely on the congress not to pass unconstitutional laws-and the president not to abuse power. A remedy which relies on the same branch that made the error to correct the error is a not a recipe at all.

Without the exclusionary rule there would be no remedy for the 4th. A right without a remedy is not a right at all. Therefore the exclusionary rule is needed.
7.19.2008 11:22pm
Bender (mail):
Tomm:


Bender: That ignores the reasons a country may have enacted an exclusionary principal, which may include rampant police misconduct.


But if rampant police conduct remains high, then use of the exclusionary principle has been useless in reducing police misconduct and my original suggestion for testing the effectiveness of the principle remains valid.
7.19.2008 11:36pm
Johnny44 (mail):

Right, an exclusion of coerced confessions can't be distinguished upon the rationale that torture is always likely to produce unreliable evidence. But if
there is little or no evidence other than a confession obtained through "torture," that confession will be more suspect than if abusive methods had not
been used to elicit it.

But what if there is evidence other than the confession -- a tortured suspect telling the police about the location of a dead body?
Should the fruit of the poisonous tree be excluded and if so on what basis?
If the justification for excluding confessions is their inherent lack of reliability, there is no truth rationale for also excluding coerced confessions -- regardless of the degree of coersion -- where the confession is subsequently corroborated by physical evidence.
The person A commits a murder; police subsequent arrests A and beats the crap out of him; A confesses and tells the police the location of the dead body; DNA evidence is used to link the suspect with the murder and the question is now whether and on what basis the connfession should be excluded in light of the DNA corroboration.
The truth function served by exclusion is no longer applicable, since the cat is already out of the bag, and A is likely more guilty than not.
7.19.2008 11:47pm
George Weiss (mail) (www):
oh i left this out re descriptive vs normative.

Orin's post is descriptive in that it claims that the reason the judges did this was becuase this was the only way they could have complete control over the judiciary-and not normative-ie. whether exclusion is a good idea.

Indeed, Orin does not deal with the question of whether exclusionary rules are good or bad.

And indeed, it is true that the case of Weeks (which ORIGIOANLLY) starts the application of the exclusioanry rule only gives us a fraction of a reason for why the jduges are picking this rule-and that snippet of info suggests somthign similar to orin's post-that the exclusionary rule is a judicial enforcement of the 4th.

But Orin does not deal with the reason the exclusionary rule has been kept-either normatively or descriptivly.

My response is BOTH descriptive AND normative
I think the reason that the Surpreme Court has continually honored such president despite seemingly serving the interests of criminals and not being found anywhere in the Constitution,

I do not think that the reason the judges KEPT the exclusionary rule was for the reasons Orin states. Instead, I think it was for the reason I state.

I also think its a good idea-and thats why i added in the part at the end about why relying on the executive to polcie itself is a bad idea.

This is to preempt the possible accusation that I don't understand the difference between his descriptive and normative posts.
7.19.2008 11:59pm
NYNY (mail):
How often is the exclusionary rule really used? In my limited research on this topic, it seems the independent source and the inevitable discovery doctrines have mostly negated the exclusionary rule.
7.20.2008 12:39am
George Weiss (mail) (www):
NYNY

don't forget the "good faith" realing on a bad warrant exception and the "inventory search" exception
7.20.2008 12:42am
XON:
"Serán nulas las pruebas obtenidas mediante violación del debido proceso." -- Evidence obtained via a violation of due process shall be void.

Artículo 197. Licitud de la prueba. Los elementos de convicción sólo tendrán valor si han sido obtenidos por un medio lícito e incorporados al proceso conforme a las disposiciones de este Código.

No podrá utilizarse información obtenida mediante tortura, maltrato, coacción, amenaza, engaño, indebida intromisión en la intimidad del domicilio, en la correspondencia, las comunicaciones, los papeles y los archivos privados, ni la obtenida por otro medio que menoscabe la voluntad o viole los derechos fundamentales de las personas. Asimismo, tampoco podrá apreciarse la información que provenga directa o indirectamente de un medio o procedimiento ilícitos.

Art 197 Legitimacy of Evidence -- The elements of conviction will only be valid if they have been obtained by a licit means and introduced at trial (literally -- incorporated into legal process) according to the dictates of this Code. (var: in conformity with this Code.)

Information (evidence) obtained through torture, mistreatment, connivance, threat, deception, undue intrusion into the intimacy of the domicile, correspondence, communications, papers and private archives may not be used; nor that which is obtained by the overbearing of the will, or that violates the fundamental rights of persons. Additionally, such information (evidence) which is derived directly or indirectly by an illegal (illicit) means or proceeding shall not be cognizable .
7.20.2008 12:55am
BJR:
What do countries without the exclusionary rule do? Do the accused in those countries have any meaningful remedy for police violating their constitutions to obtain evidence?


I'll try to give a brief summary of the Canadian approach.

From the Canadian Charter of Rights and Freedoms (basically the Canadian version of the Bill of Rights):


24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


The question of whether admission would bring the "administration of justice into disrepute" is analyzed using a three-step test. (Oh, and incidentally, the word "would" is interpreted as "could," because the drafters fucked up and used the French word for "could" in the French version of the Charter. Because the Charter is interpreted in the manner most favourable to the accused, the less restrictive test governs. Aren't two official languages great?)

The first step is to ask whether the admission of the evidence could affect the fairness of the trial. If its admission would affect trial fairness, the evidence is pretty much always excluded. In practice, "trial fairness" has come to involve an inquiry into whether the evidence is "conscriptive" or "derivative" evidence. ("Conscriptive" is a word apparently invented by the Supreme Court of Canada.)

Conscriptive evidence is evidence emanating from the accused herself that would not have existed but for the constitutional breach. It includes things like statements/confessions, blood/breath samples, DNA samples, and so on. The "would not of have existed but for the breach" part is obviously a bit of a legal fiction in the context of blood samples. But the point is that in order for real/physical evidence to be conscriptive, there has to be some connection to the breach. Blood taken by a doctor for medical purposes isn't conscriptive. Blood taken by the police for an impaired driving investigation is conscriptive.

Derivative evidence is real/physical evidence that is derived from conscriptive evidence. The easiest example is a murder weapon that would not have been discovered but for an unconstitutionally obtained confession.

If evidence is conscriptive or derived from conscriptive evidence, its admission would affect trial fairness (or so the logic goes) and it is virtually always excluded. There has been a lot of criticism of this approach on the grounds it functions as a quasi-exclusionary rule, similar to the American approach, even though the drafters of the Charter were quite clear that they never intended s. 24(2) to be used as an exclusionary rule. Not to mention the fact it isn't terribly clear why admission of this evidence would always automatically bring the administration of justice into disrepute.

If the evidence is not conscriptive -- for example, a kilo of cocaine found in the trunk of your car -- then the second and third factors are considered.

The second factor is the seriousness of the breach. This takes into account questions like:
- Was the breach intentional or deliberate?
- Was the breach motivated by urgency or necessity?
- Was the breach committed in good faith?
- Could the police have obtained the evidence by other means? (This is actually sometimes an aggravating factor, since it could make the breach gratuitous and blatant.)
- The intrusiveness of the search, and the nature and extent of the reasonable expectation of privacy in the place searched.

These factors are balanced off against the third part of the test: Would the admission of the evidence bring the administration of justice into greater disrepute than its exclusion? This is basically judicial code for: How serious was the offence? If the offence was very serious -- murder, or six kilos of uncut coke in the back of your car -- this lets trial judges make an extremely subjective decision about whether the evidence should be admitted. And given that the standard of review on appeal for 24(2) decisions is reasonableness, there isn't much you can do if a trial judge really wants to admit the evidence.

So there you have it. 24(2) jurisprudence in Canada is -- in my opinion -- a bit of a mess, but it is an example of a system that doesn't always have an automatic exclusionary rule.
7.20.2008 1:14am
neurodoc:
Johnny44: ...what if there is evidence other than the confession...Should the fruit of the poisonous tree be excluded and if so on what basis? If the justification for excluding confessions is their inherent lack of reliability, there is no truth rationale for also excluding coerced confessions -- regardless of the degree of coersion -- where the confession is subsequently corroborated by physical evidence.
Right, there is not always the rationale of an "inherent lack of reliability" to rely on. If rather than having "little or no evidence other than a confession obtained through 'torture,'" the prosecution is able to put the coerced confession together with corroborating evidence, then "inherent unreliability" will not serve as much of a justification for excluding the confession, and only a "fruit of the poisoned tree" would serve as justification for keeping out otherwise good evidence discovered through it.
Johnny44: Should the fruit of the poisonous tree be excluded and if so on what basis?
It's because of how the fruit was collected. ("[T]here are forms of coercion...so egregious and offensive to general notions of justice," namely "torture.") We have decided as a society we ought not allow someone to be convicted in our criminal courts of a crime on the basis of evidence collected through torture. (Can we limit this discussion to our criminal courts, with their rules of evidence, and not try to encompass military tribunals for those designated "enemy combatants?")

I suppose that because of the Fifth Amendment's guarantee that one cannot be compelled to testify against themselves, and perhaps because of other Constitutional guarantees, there may be no choice but to exclude evidence obtained through torture. But even if that weren't so, I don't think it hard to say why in US courts "fruit" obtained through torture may be regarded as more dangerous than that obtained by arguably improper searches.
7.20.2008 1:25am
Shelby (mail):
In the wake of BJR's treatise (I kid!) on Canada's quasi-exclusionary rule, I have a request for a blog-post by Orin or some other competent person:

Why do other countries not have an exclusionary rule comparable to the US one? Do not many of the same issues arise in their judicial systems? Are other remedies equally effective?

Obviously this question could be the basis for a long law review article, or a book, if it delved survey-style into a plethora of judicial systems. I'm just asking for an ordinary blog-post-length answer, if anyone can give it.
7.20.2008 1:35am
BRM:
And yet it is the judicial branch which has made successful civil suits nearly impossible through the doctrines of qualified immunity and Heck v. Humphrey (requiring the dismissal of the suit if the plaintiff was convicted).

If the Exclusionary Rule were abandoned, criminal defendants could probably file 1983 suits (and Bivens actions, I suppose) to challenge the infringement of fourth amendment search/seizure rights, even if convicted. The rationale of Heck was that convicted criminals should not be able to use 1983 suits to attack the validity of their convictions as a way to circumvent the more elaborate system of habeas attack. Even if the convict doesn't care about being exonerated but just wants some money (as apparently was the case in Heck), the Court reasoned that a 1983 attack on the constitutionality of any portion of the criminal investigation or prosecution would call the underlying conviction into question. If the Exclusionary Rule were abandoned, then a conviction would not be called into question simply because evidence was shown to have been obtained illegally. Thus, without the Exclusionary Rule, the rationale of Heck would not apply in that situation, and convicts would be able to bring suits for damages. Presumably Heck would still be valid for challenges to other constitutional violations, such as Sixth and Eighth Amendment attacks.
7.20.2008 1:53am
Oren:
OT but relevant to the recent thread on self defense.
7.20.2008 2:59am
Dave D. (mail):
...The exclusionary rule doesn't do what many of you think it does ; it doesn't change bad police officers' behaviour. It does stop some prosecutions, but lying, torturous cops are not effected by the exclusionary rule whatsoever. If that was the goal of this rule, it failed.
..It's unusual to have evidence supressed. So unusual as to be arbitrary. The suppressed evidence in one courtroom wiould have been admitted next door. Something is wrong with a system so capricious and unpredictable. Very wrong. Any evidentury consistancy from judge to judge is accidental. I've read many posts and threads here that dealt with the exclusionary rule. I can't recall any that dealt with the internal evidentury inconsistancies built into the judicial branch. Only that branch can address them. Why waste your time on the nickel and dime exclusionary rule and ignore the elephant in the courthouse ?
7.20.2008 3:06am
whit:

but rather as stemming from a conclusion "Evidence illegally obtained is inherently untrustworthy", and thus excluded


This is absurd. Most applications of the exclusionary rule are "bad" searches

either without probable cause
or extended scope (like a frisk that turned into a search)
or with probable cause, but requiring a warrant and without one

etc.

This says close to or exactly ZERO about reliability.


In my limited research on this topic, it seems the independent source and the inevitable discovery doctrines have mostly negated the exclusionary rule.


emphasis on LIMITED. Get real.
7.20.2008 4:16am
whit:

My understanding of the law is this: When police "simply err," so long as the error is made in good faith, the good-faith rule prevents exclusion


I can't speak for other jurisdictions, but I can tell that WA has very little good faith exception. Iow, good faith does not matter. There are a few exceptions, like bad arrests in DV cases you can't be sued if you acted in good faith. But that's because the constitution doesn't apply in DV cases :)

But in general, there is no good faith exception in WA state. Again, can't speak for other jurisdictions.
7.20.2008 4:18am
whit:
oh, just to add to the selection bias thing, that the "limited researchers" may not grok...

1) the most obvious is that literally thousands if not millions of searches WON'T BE CONDUCTED IN THE FIRST PLACE because the cops know there is an exclusionary rule. that's a huge factor not really being considered when you are ONLY looking at court stuff because those don't take into account the countless times a search ISN'T done because of the exclusionary rule. that's the exclusionary rules greatest force, frankly.

issue 2. Often when cops do what they KNOW is an illegal search, they will do one of two things

1) they will just toss the contraband out in front of the suspect. This is of course because the cops know there IS an exclusionary rule (unless the cop just feels like giving a warning for a small amount of drugs). This can happen when the cop either makes the search KNOWING it's a bogus search and will be excluded, OR when the cop suspects after the fact - you know what, maybe that wasn't a good search after all.

2) they will write a case report "for disposal" with the narrative stating that the evidence doesn't meet filing standards, and the evidence will be destroyed. again, that case will never SEE a court, so will again never enter into this "limited research"
7.20.2008 4:34am
OrinKerr:
To the readers on a high horse about "essentially unique":

I used the phrase because whether the exclusionary rule is "unique" depends on how you define what the exclusionary rule is. Other countries have something sort of similar, but no other country has the same version of the rule. If I had said the U.S. exclusionary rule is unique, then a very fair response would be, "no, it's not -- other countries have something like it, too." I used "essentially" to signify that the rule is more or less unique, depending on how you define what the rule is.
7.20.2008 4:52am
Perseus (mail):
These people aren't filing a brief before the Supreme Court, so give it a rest already.

But posts by VC bloggers and even a commenter have already been cited in lower court decisions, so it's only a matter of time before one will be cited in a U.S. Supreme Court decision. In anticipation of that event, I merely want to help ensure that each post is essentially perfect. :o)
7.20.2008 5:36am
Oren:
My understanding of the law is this: When police "simply err," so long as the error is made in good faith, the good-faith rule prevents exclusion
Good faith (US v. Leon) prevents exclusion of evidence seized in good faith reliance on a warrant despite the fact that the magistrate erred in granting it (in that case, because the affidavit did not establish probable cause). IOW, to steal a characterization: "Affidavits for search warrants are like sex. Even when they're bad, they're good." (
—John Wesley Hall, Jr., Ark. Democrat-Gazette)

On the other hand, the Supreme Court could smoke up a herring and extend that to good faith reliance on representations made by other law enforcement.
7.20.2008 5:55am
George Weiss (mail) (www):
whit-

just os you know.

the good faith exception, (which gets you around federal constitutional problems-but not state issues) is applied to good faith reliance on a warrantt...not simply good faith. the situation would be one where a cop thinks he has a good warrant-but the warrant is actually bad. (i.e. the warrant issuer error in finding probable cause-or there is some technical blemish on the warrant itself such as transposed numbers)

the Washington supreme court has never directly held the good faith reliance on a warrant exception as applying to satisfy the Washington state constitution or states. However, it also has never expressly held that it does not apply. as late as 2003 i see cases saying the Washington supreme court has never decided on the issue.

im not sure whether most states have taken their full power under the us constitution (which would allow for a good faith exception in the case of a bad warrant.) or have given more protection than the US constitution affords-by applying exclusionary rules to cases where a cop did indeed have relaince on a bad warrant.
7.20.2008 6:04am
Duffy Pratt (mail):
whit"

Is it your opinion that searches are prevented by the exclusionary rule, or by the underlying constitutional rule? In other words, would policemen carry out the searches that are now being prevented if they knew that the searches were unconstitutional, if they knew that the victim of the unconstitutional search would have no effective remedy?
7.20.2008 6:28am
Piper:
Liptak must have never heard of those five Mexicans in Texas. Scalia claped his hands.

What else would you expect from the NYT?

Also,



Its interesting that other countries take the position that once the facts are known; those are the facts and that's the only thing that matters.



Exactly. And that is fundamentaly wrong. What is says, is f. the Constitution, as long as we can convict somebody.

Test question here would be: "if any illegal evidence can be used no matter what, then why do we have the Contitutional protection at all"?

And please, I don't want to hear police excuses, and typical pointing fingers at each other, when their illegal actions are exposed. We pay them for PROFESSIONAL service only. If they can't coordinate their work, then sanitation department is hiring garbage collectors.
7.20.2008 9:48am
Piper:


The judge could put the police officer(s) in jail for contempt of court. That would certainly be a better result than letting the guilty go free.



Exactly, "could". (We discuss what IS.)

In any case, what about thousands who arr innocent of any crime. Was not Fifth Amendment a result of exactly that type of thinking and actions of the British authorities in the American colonies?
7.20.2008 9:58am
Jon Lubin (mail):
Akhil Amar convincingly argues that the exclusionary rule has no basis in the Constitution's text, history, or structure. Not only that, the exclusionary rule is positively reversed in the kind of citizen that benefits from its application (i.e., bracketing aside any positive and indirect effect that we all experience from living in a less zealous police state, it is the guilty that benefit most from the exclusionary rule). So, why not alter the remedy? Allow evidence from unconstitutional police tactics into criminal cases, but provide a deterrent to that overly aggressive behavior in the way of civil constitutional tort suits with real bite. In that way, when the innocent among us are deprived of our constitutional rights, police departments will still feel the sting of financial pain and public reprimand; and when the guilty among us are deprived of their constitutional rights, they'll still have the same case amassed against them, but with a remedy at law.
7.20.2008 10:54am
tarheel:

What else would you expect from the NYT?

Well, you know this is a complex topic -- or I am in bizarro world -- when at least two VC commenters decry the NY Times for skewing pro-prosecution/pro-law-and-order.
7.20.2008 11:12am
trad and anon:
So, why not alter the remedy? Allow evidence from unconstitutional police tactics into criminal cases, but provide a deterrent to that overly aggressive behavior in the way of civil constitutional tort suits with real bite. In that way, when the innocent among us are deprived of our constitutional rights, police departments will still feel the sting of financial pain and public reprimand; and when the guilty among us are deprived of their constitutional rights, they'll still have the same case amassed against them, but with a remedy at law.
Hasn't our legal system already rejected the idea that damages at law can be an adequate remedy for conviction of crime? If you lose a civil case because of ineffective assistance of counsel, your remedy is a malpractice suit, but when that happens in a criminal case you get a new trial precisely because damages are not an adequate remedy for being sent to prison and having your reputation permanently destroyed due to criminal conviction.

Also, assuming damages at law could ever be an adequate remedy, Congress would never create a tort with real bite. What politician wants to be tarred as "soft on crime"?
7.20.2008 11:35am
Nick B:
Re: a few other posters who point out the "Good Faith" exceptions, I've always found it interesting that Citizens are required to know every single law, yet Police Officers are not required to know any laws.
7.20.2008 12:07pm
MarkField (mail):

So, why not alter the remedy? Allow evidence from unconstitutional police tactics into criminal cases, but provide a deterrent to that overly aggressive behavior in the way of civil constitutional tort suits with real bite. In that way, when the innocent among us are deprived of our constitutional rights, police departments will still feel the sting of financial pain and public reprimand; and when the guilty among us are deprived of their constitutional rights, they'll still have the same case amassed against them, but with a remedy at law.


Just to add to trad and anon's point, the chances that a jury (or judge) would award damages to a convicted defendant are essentially zero.

When I was in law school, I read an article by Anthony Amsterdam defending the Exclusionary rule. I wrote him a letter suggesting a tort remedy; my suggestion was fairly elaborate in order to get around the problem of unsympathetic plaintiffs. He was nice enough to send me back a detailed letter explaining all the flaws in that. I was convinced.
7.20.2008 12:13pm
Dave Hardy (mail) (www):
1. Remember that we start off with the 5th Amendment, where exclusion is not merely a remedy but the right itself.

2. Normally, one might expect the remedy to be a civil action. At common law, as I recall, these were pretty simple. Sovereign immunity cut the other way -- the king can do no wrong, but his servants can, and they are estopped from pleading their orders since ... the king can be no wrong and could not have given such orders. Until Bivens, no remedy against feds at all. Federal Tort Claims Act has the discretionary function exception, which covers a lot of LE decisionmaking, and various immunity doctrines limit Bivens and 1983 actions. Those barriers exist even as to provably innocent defendants. As to guilty one, as pointed out above, where's the damage? Even if a legal theory could be created for it, a jury would laugh it off.

3. A prosecutor friend once remarked that one limit of exclusion as a deterrent is that police see their task as solving the crime and arresting the right person. Whether they win or lose the case is seen as the prosecutor's responsibility.
7.20.2008 12:16pm
Kirk:
Uhhh, whit, shouldn't that be a frownie to go along with "the constitution doesn't apply in DV cases"? :-( :-( :-(
7.20.2008 12:44pm
Karsten (mail) (www):
very nice blog...thanks a lot :)
7.20.2008 12:44pm
Steve2:


This is absurd. Most applications of the exclusionary rule are "bad" searches

either without probable cause
or extended scope (like a frisk that turned into a search)
or with probable cause, but requiring a warrant and without one

etc.

This says close to or exactly ZERO about reliability.


Eh, I'd just assumed the "reliability" aspect of it was something along the lines of "didn't follow the rules, therefore assumed to have fabricated the evidence entirely". Didn't say it was necessarily a good rationale - and it doesn't much seem to matter, since that apparently wasn't the rationale for it at all.
7.20.2008 12:45pm
Realist Liberal:
Mike&~
The good faith rule only applies when the officer relies, in good faith, on a statute which has not yet been held unconstitutional that allows a search but is later ruled unconstitutional, on a case that is later overturned or a warrant which later is held to be invalid. The good faith rule does not apply when an officer makes an error in judgment about whether or not there is probable cause to search a car without a warrant (for example).

I add to the requests for a normative post. My experience in working in a narcotics unit at a prosecutor's office is that the exclusionary rule is applied most often when the officer makes a good faith mistake in judgment in a close call. The officers that are willing to flat out break the rules are willing to "testi-lie."
7.20.2008 12:59pm
Joe Bingham (mail):
Interested in follow-up post.
7.20.2008 1:40pm
SIG357:
I also think, in terms of the Constitutional legitimacy of judge-made rules, the exclusionary rule ranks highly since accused persons are assuredly a politically powerless group.

I don't see the relationship here. What is the connection between "Constitutional legitimacy" and "politically powerless group[s]"?
7.20.2008 2:03pm
SIG357:
Unless we were to move to some model removing discretion from the prosecutorial choice set there would always be the danger that a prosecutor would ignore violations because they produce much more useful results against groups that the public disfavors.


I must admit, it's news to me that prosecutors may prosecute "groups". Obviously they may prosecute a number of people who happen to be involved in the same criminal conspiracy, but I sense that's not what is meant here.

If the public "disfavors" certain groups than the public may of course pass laws against them. But that's not a prosecutorial matter.
7.20.2008 2:11pm
ejo:
http://www.freerepublic.com/focus/f-news/1748654/posts

just in case no one thinks there is a human face to be put on suppression of evidence and it's all just an academic argument-kills a family of 4, kills someone else the same way 20+ years after the fact.
7.20.2008 2:22pm
Mahan Atma (mail):
"just in case no one thinks there is a human face to be put on suppression of evidence and it's all just an academic argument-kills a family of 4, kills someone else the same way 20+ years after the fact."


Here's the other side: The police arrested the defendant without probable cause. They interrogated him in custody for 18 hours without allowing him to eat, drink, or sleep.

Do you think the police should be able to arrest people without probable cause and interrogate them at a police for 18 hours without food, water, or sleep?

If not, what remedy do you suggest?
7.20.2008 2:41pm
ejo:
I don't know the answer to that-was the price to be paid by society for 18 hours of interrogation (ie. 5 people brutally murdered) worth it? I would say no, it wasn't worth it. the punishment outweighed the crime.

I also thought people should move past the academic argument and realize that suppression isn't cost free, as appears to be the thrust of quite a few comments above.
7.20.2008 3:09pm
Andrew Hyman (mail) (www):
On the normative (rather than descriptive) issue, I have always been sympathetic with the Exclusionary Rule, but not for the reasons one might expect. I think it may well follow from a reasonable interpretation of the Fourth Amendment in combination with the Fifth.

For well over a hundred years now, SCOTUS has been torturing and twisting the Due Process Clause of the Fifth Amendment to read into it the Court's own notions of liberty and justice, and its own preferred fundamental rights. I disagree with that procatice, and am dumb enough to hope it will stop some day.

But look at the actual words of the Due Process Clause: no person can be denied of liberty without the process that is owed to him by law. And one of those processes owed to him by law is that searches and seizures normally be supported by a warrant. So, to my mind, if the Exclusionary Rule is actually a valid interpretation of the Constitution, then we should thank the Due Process Clause, which seems to actually put some teeth into the rest of the Bill of Rights.
7.20.2008 3:16pm
Oren:
bracketing aside any positive and indirect effect that we all experience from living in a less zealous police state
Yes, aside from the main benefit, there isn't much benefit. The entire point of the 4A is to effectively ensure that the police abide by the standards of the Constitution.

In fact, one would think that the logical conclusion would be a police force the scrupulously followed the rules and that there would, in fact, be very little suppression. Of course, I have personal experience with an officer that said, point blank, that he preferred to search and risk having the evidence thrown out than potentially let me go. If anything, exclusion was too weak a deterrent, not too strong.
7.20.2008 3:22pm
Mahan Atma (mail):
"I don't know the answer to that-was the price to be paid by society for 18 hours of interrogation (ie. 5 people brutally murdered) worth it? I would say no, it wasn't worth it. the punishment outweighed the crime."


You are viewing this case in isolation and with hindsight. Courts have to think about how the rule plays out in other cases.

If you allow the police to arrest people without probable cause and interrogate them indefinitely, a lot of innocent people are going to get hauled in like that. That's what they do in police states.

Second, perhaps the police could have used lawful techniques to develop probable cause before arresting the defendant. If so, then the fault of the subsequent murders lies with the police, not the exclusionary rule.
7.20.2008 3:22pm
Ken Arromdee:
bracketing aside any positive and indirect effect that we all experience from living in a less zealous police state, it is the guilty that benefit most from the exclusionary rule

Aside from that, Mrs. Lincoln, how did you like the play?

The people who benefit the most from the exclusionary rule are all the ones who indirectly benefit because the police are deterred from overzealously searching them. You're specifying that the biggest class of benefits doesn't count.
7.20.2008 4:50pm
whit:

Is it your opinion that searches are prevented by the exclusionary rule, or by the underlying constitutional rule? In other words, would policemen carry out the searches that are now being prevented if they knew that the searches were unconstitutional, if they knew that the victim of the unconstitutional search would have no effective remedy?



both. but I can state certainly that many searches won't be carried because of the exclusionary rule. In some cases, searches are carried out, but evidence is either disposed of at scene, or a case is made for disposal because of the exclusionary rule (or apprehension of, more correctly.)

There are other searches (or frisks) that are carried out KNOWING they are excludable, but for safety. Perfect example is that the WA supreme court just ruled that it is NOT reasonable to FRISK a passenger in a stolen vehicle MERELY because they were in a stolen car.

I can guarantee you that officers are still going to frisk everybody in a stolen car. But absent extra "frisk factors" they will be doing that knowing (or at least they should know) that it's gonna get tossed.

But yes, according to the WA supreme court - being a passenger in a stolen car is not enough in and of itself to justify a frisk of them, let alone a search.
7.20.2008 7:15pm
Paul G (mail):
I would add to the list of causes our greatest jurist--Oliver Holmes. He championed the exclusionary rule (par usual, in dissent at the time).
7.20.2008 7:19pm
whit:

the good faith exception, (which gets you around federal constitutional problems-but not state issues) is applied to good faith reliance on a warrantt...not simply good faith. the situation would be one where a cop thinks he has a good warrant-but the warrant is actually bad. (i.e. the warrant issuer error in finding probable cause-or there is some technical blemish on the warrant itself such as transposed numbers)


you are correct, but that is not entirely what I was referring to, in the DV example. DV is the only crime I can arrest for summarily (iow w/o a warrant) on an order violation where as long as I act in good faith, my butt is covered.

RCW 26.50.140
Peace officers -- Immunity.
No peace officer may be held criminally or civilly liable for making an arrest under RCW 26.50.110 if the police officer acts in good faith and without malice.


[1984 c 263 § 17.]

This is, as far as I know, the ONLY instance where I can arrest on probable cause and be free from both criminal and civil liability as long as I acted in good faith and w/o malice.

This is a MAJOR difference from other crimes. It doesn't apply to arrests for murder, rape, kidnapping, burglary, auto theft, etc. But DV order violation - I'm covered completely.
7.20.2008 7:23pm
30yearProf:
We can learn things from non-lawyers. Amazing, but true!
Badley Balko at www.theagitator.com has this to say about the exculsionary rule.

The Phantom Exclusionary Rule

Adam Liptak, the New York Times’ new Supreme Court reporter, writes on the exclusionary rule, explaining that in U.S. criminal courts, evidence “is routinely and automatically suppressed where police misconduct is found.”

Except that it isn’t. It takes particularly egregious conduct on the part of police to get evidence suppressed. And it’s vanishingly rare. The often-propagated idea that child rapists and multiple murderers are getting released because judges are suppressing the evidence against them is a canard.

As for the broader debate on the rule itself, I understand the arguments against it, and I’d be fine with doing away with it–if I were certain there were adequate measure in place to deter police misconduct and protect our Fourth Amendment rights. There aren’t. Police are rarely if ever disciplined for improper searches. Compensation for someone wrongfully searched is even rarer.

Let’s assume there’s no exclusionary rule. You’re a cop, and you believe there’s a career-making narcotics bust at the home of someone you’re investigating. There’s always going to be the temptation to take a shortcut. If you screw up and get the wrong house, you’re at worst looking at a slap on the wrist, and possibly a small settlement paid for by the taxpayers. Get the right house and make a big bust, and no one’s going to care much at all what tactics you used to get in there.

The vague, small possibility that the entire investigation could get tossed is about the only check we have right now. This isn’t saying all cops are corrupt. It’s saying that cops are human, and respond to incentives.

I know conservatives hate the exclusionary rule, because they feel it protects criminals. Tell you what. If you want to get rid of it, then step up to the plate with ideas that will offer real discipline for cops who routinely disregard the Fourth Amendment, and come up with a system that compensates the people wrongly searched.

Even with the exclusionary rule, we’re perilously close to having an enumerated right that offers no remedy for those who have been violated, and no sanction for the state actors who violate it.

That’s not really much of a right at all, is it?


I, for one, have NEVER heard a conservative opponent of the exclusionary rule suggest a viable alternative. Since the Exclusionary rule has been "gutted" by conservative Justices, there seem to be no protection from police abuse (of even the good folks). That makes the Constitution a worthless piece of parchment. No? Convince me.
7.20.2008 8:41pm
George Weiss (mail) (www):
whit:

in that case your talking about civil immunity.

thats a totally diffrent issue from the exclusionary rule.

also-you seem to be talking about arrest, not searches and the exclusionary rule.

forgive me for not understanding you were talking about an entirely diffrent issue from Onin's post.

but lets talk about your worries about civil libaility for probable cause arrests in "good faith" (assuming we are not talking about excessive force-which you are foreclosing by assuming you act in "good faith" and "without malice" which i assume means without excessive force

First-as far as federal claims-probable cause is an absolute defense to a 1983 claim claiming that the person should not have been arrested. this would be true even without the qualified immunity police have under the statute. 1983 is civil liability for constitutional right violation-but probable cause gets you around the constitutional violation-no violation-no 1983. Furthermore, even if what you do is later declared unconstitutional-your covered by the federal qualified immunity doctrine unless you violate clearly established doctrine of constitutional law.

a similar situation unfolds under state law in Washington. The qualified immunity doesn't extend as far as the federal immunity does- (the state form of qualified immunity extends to all officers who are acting pursuant to statutory duty and act reasonably Guffey v. state 103 Wash.2d 144.) But what is clear is that officers are given statutory authority to arrest for felonies on probable cause, and for misdemeanors in their presence. RCW 10.31.300

since they have this authority-it is by definition not false arrest to arrest when they have probable cause for such things.

even some misdemeanors delineated in 10.31.300 (10.31.300 (2)-(8) can be arrestable (with PC of course) even without the presence of the officer. (these are such things as DUI, indecent exposure, interfering with a health care facility in the last 24 hours). By the way 10.31.300 has a provision saying that

"(12) No police officer may be held criminally or civilly liable for making an arrest pursuant to RCW 10.31.100 (2) or (8) if the police officer acts in good faith and without malice."


yes-you are still not immune in all these cases for extraneous force-but you said you were worried about being sued when you acted in "good faith"-i doubt excessive force qualifies as "good faith"

so how again are you worried about civil liability for arrest when you have probable cause? it just doesn't make sense from the standpoint of the law.

the statute you cite about DV is almost extraneous in this regard...and contrary to the cannons of construction-there are lots of extraneous laws out there.

have you ever been successfully sued as a cop for an arrest which the courts agreed you had probable cause and that you did not use excessive force? have you an example of anyone who ever was in your state-or anywhere else for that matter? has anyone even got to trial in such a case? please tell?
7.20.2008 9:05pm
Michael J.Z Mannheimer (mail):
Orin,

A very thougtful post, as usual. If there is any flaw in your argument, however, it is that it assumes that the judiciary can continue to utilize the exclusionary rule without any fear of interference by the political branches. But, as my Spring 2008 Crim. Pro. students know from their final exam, that is not at all clear to me. Mapp suggests that the exclusionary rule is constitutionally required. But Calandra, Leon, and subsequent cases suggest it is merely a judge-made remedial device, in the same way that cases of the same period referred to Miranda as a "prophylactic" rule. So it remains to be seen whether Congress and the President could alter or even abolish the exclusionary rule, much the same way they purported to abolish Miranda in 1968. We all know how that turned out — see Dickerson — but it was a substantial enough position to make it to SCOTUS and garner two votes when it got there.

So assuming that Congress and the President could abolish or, more likely, alter the exclusionary rule, that harms your thesis that the exclusionary rule is wholly under the control of the judiciary. Arguably, like anything else, the political branches could have their say if they so chose.
7.20.2008 9:58pm
edmund:
very intersted in both normative (ie policy) question and constitutional one as well good post- seems very true
7.21.2008 12:50am
whit:

in that case your talking about civil immunity.

thats a totally diffrent issue from the exclusionary rule.

also-you seem to be talking about arrest, not searches and the exclusionary rule.

forgive me for not understanding you were talking about an entirely diffrent issue from Onin's post.




1) it's not an entirely different issue. it's a tangent
2) often referred to as "thread drift"

yes-you are still not immune in all these cases for extraneous force-but you said you were worried about being sued when you acted in "good faith"-i doubt excessive force qualifies as "good faith



really? Did I EVER say I was "worried about being sued?"

I was merely pointing an issue with the law.

I am not worried about being sued.

Stop reading into what I say and read WHAT I say.

I suggest you are projecting your prejudices and fantasies into what I say vs. just reading what I say.
7.21.2008 1:24am
Dave D. (mail):
...California citizens did alter that states exclusionary rules by requiring it's courts, through the initiative process, to adopt the federal standard for evidence admission, some years ago. We fired some California Supreme Court Justices, too.
...30 year prof, AKA Joe Olson. I certainly hope you don't teach that " Constitution is a worthless piece of parchment " theory of yours to the struggling masses. I'd hope their tuition entitles them to a legal education a little more insightful than that. But Joe, I will always be grateful for you for tipping us off to " Badley Balco ", Radleys evil alter ego.
7.21.2008 1:26am
whit:

have you ever been successfully sued as a cop for an arrest which the courts agreed you had probable cause and that you did not use excessive force? have you an example of anyone who ever was in your state-or anywhere else for that matter? has anyone even got to trial in such a case? please tell?



I've never been sued period - successfully or unsuccessfully. I've also never been investigated by internal affairs. That's of course partly luck and partly my skills in talking to people (because people who are pissed off tend to sue and make complaints even when they have no case).

But since you have concluded, sans evidence that I am "worried about being sued" and said so much , I'm not really sure where you are going with this.
7.21.2008 1:27am
whit:

Since the Exclusionary rule has been "gutted" by conservative Justices, there seem to be no protection from police abuse (of even the good folks). That makes the Constitution a worthless piece of parchment. No? Convince me.



Why should anyone bother to TRY to convince somebody who obviously has a closed mind, and draws erroneous conclusions, such as the constitution is a "worthless piece of parchment" and there is "no protection from police abuse".

There is no way a rational person could draw either of these conclusions, so why should anybody try to convince you of anything?

It would be like a guy coming in here and saying "the earth is flat. TRY to convince me it's an oblate spheroid".
7.21.2008 1:30am
George Weiss (mail) (www):
Whit:

lets see

you "drifted" into a "tangent" (both your words not mine_ about civil liability when the topic was the exclusionary rule.

you even said

"you are correct, but that is not entirely what I was referring to, in the DV example. DV is the only crime I can arrest for summarily (iow w/o a warrant) on an order violation where as long as I act in good faith, >my butt is covered.

you also said

"This (DV arrests) is, as far as I know, the ONLY instance where I can arrest on probable cause and be free from both criminal and civil liability as long as I acted in good faith and w/o malice."

where did i get the idea you were worried about lawsuits for arrests? its clearly my prejudices and fantasies.

nowm besides this sort of rehtoric-when it comes to the substance of what we were talking about- it turns out you are wrong about DV being the only good faith exception in Washington. ..both in terms of the definition of false arrest (probable cuase being an absolute defense to false arrest when authorized to arrest)...you even missed a plane statue with identical language to the one you cited-(flasely stating that DV was the only case of that language) which also gives you immunity when your acting pursuant to the statue and in 'good faith.'

how did you miss the identical statue? maybe it was your "prejudices and fantasies"? or maybe you just made an error. i think it was the latter.

so maybe your not "worried about being sued" but you sure sound like it given what you had said above. so is it really my "prejudices and fantasies" that you detect?

or did you get nailed misstating your own states law and redirect your embarrassment onto me by telling me im reading itno what your saying too much? I have a response you might have tried. why not just say-"ooops i misunderstood (or understood but misstated) the law in my state. there are many more protections for cops out there than i thought there were, both under federal law and in my state-thanks for taking the time to look up the Washington state law.

because your whit...and you dont do that kind of thing do you?

congrats on ever being investigated or sued. that probably means your good at what you do.
7.21.2008 5:04am
Thales (mail) (www):
"Akhil Amar convincingly argues that the exclusionary rule has no basis in the Constitution's text, history, or structure. Not only that, the exclusionary rule is positively reversed in the kind of citizen that benefits from its application (i.e., bracketing aside any positive and indirect effect that we all experience from living in a less zealous police state, it is the guilty that benefit most from the exclusionary rule). So, why not alter the remedy? Allow evidence from unconstitutional police tactics into criminal cases, but provide a deterrent to that overly aggressive behavior in the way of civil constitutional tort suits with real bite. In that way, when the innocent among us are deprived of our constitutional rights, police departments will still feel the sting of financial pain and public reprimand; and when the guilty among us are deprived of their constitutional rights, they'll still have the same case amassed against them, but with a remedy at law."

Amar's argument is slightly different--it's not just that evidence from unconstitutional searches should be allowed in criminal prosecutions, while preserving a civil tort remedy, but that the nature of the crime being investigated should be one factor in whether the search is "reasonable," the core command of the Fourth Amendment. So if in fact the alleged crime was serious enough to merit a relatively more invasive search, in some cases that search will nonetheless be reasonable. (Richard Posner also made a similar argument). Amar also points out that the original remedy for fourth amendment violations was *strict liability* trespass suits, meaning the good or bad faith of the police would not be a factor, only whether the search was reasonable.
7.21.2008 12:06pm
josh (www):
Activist judges!!!

Just kidding. Would look forward to the normative-explanation post. I think we'll see that the exclusionary rule cases have as much textual/original support as Heller did.
7.21.2008 3:14pm
Devereaux:
By all means, post the Normative-explanation post. I very much look forward to seeing it.
7.21.2008 6:29pm
yetanotherjohn (mail):
There was another avenue open to the judges. A supreme court ruling that hinted broadly that evidence discovered in violation of the defendants constitutional rights would enable the defendant to recover damages as part of a civil rights suit could have been employed. This would have moved the question of reasonableness to a jury (yes, the police were reasonable so there was no civil rights violation or no, the police were unreasonable in their search and seizure so the defendant is entitled to damages of X amount). It would have also been more likely to have non-criminals who fell afoul of some of the no-knock raids.

As a practical matter, such a path would have benefited society by more likely convicting criminals (just because the court refuses to admit evidence does not mean the evidence is false or no crime was committed) and by discouraging inappropriate techniques (an argument can be made that hitting the city/police in the pocket book would be more effective than letting a criminal go because evidence was excluded).
7.21.2008 6:40pm
Tcobb (mail):
I have been out out of the criminal defense business for nearly twenty years, but even while I was in it the laws pertaining to the exclusionary rule were in a constant state of flux. In my opinion, if you want an alternative to the exclusionary rule, do this: By LEGISLATION make it a crime for a peace officer to violate the Fourth Amendment rights of anyone found to be in violation of any law. Further, give the right of the criminal Defendant the right to establish a prima facie case (winning what would otherwise be called a Motion to Suppress Evidence hearing) and if he does so this establishes probable cause to indict the officers for violating the Defendants Fourth Amendment rights. If no indictment is sought within time period X it will be an absolute defense to prosecution. If the officers are indicted the Defendant shall be allowed to remain free without bond if the offending officers are given bond and released, and if the offending officers are convicted the penalty given to the one whose Fourth Amendment rights were violated may not exceed that given to the ones who violated them.

The main problem with the exclusionary rule is that it doesn't really impose any penalty on the folks who violate it. It's the cops. And not all of them, just a nasty little subset of them. Once it really becomes close and personal with the people who habitually tread on such rights , they just might back off.
7.21.2008 8:07pm
AST (mail):
With 113 comments, I'd say the normative question is being begged.

My impression is that in drug cases cops who are frustrated with the kind of nice distinctions and conflicting instructions from judges tend to just be content with getting the contraband off the street and just assume that the courts will just do what they're going to. I think the police would be a lot more scrupulous in respecting the rules if they were being fined for violations as opposed to just losing a conviction. The exclusionary rule seeks to remedy search and seizure violations by punishing society rather than the ones doing the violating. The theory that the exclusionary rule is only resetting the case to the state it would be if the violation hadn't occurred is absurd, considering how many times the police are acting in good faith.

Punish the violator, not the public.
7.21.2008 9:26pm
Dave D. (mail):
...What bunkum ! When working, I had evidence suppressed some times, not other times, in which the facts were roughly equivalent. It all depended on the quality of the judge, the prosecutor and the attorney. I had a recording of the defendants incriminatory statements, made in my patrol car, suppressed, BECAUSE I had read him Miranda first, before searching his car. The search was in but the statements were out, because The judge thought that this lured the suspect into making the statements he made while seated alone in my unit. So, AST and TCobb, you think I should be charged with a CRIME because of this ?
..Cops aren't paid by the search, or the arrest. The first time I was charged or fined for a probable cause arrest or suppressed evidence is the last time I would search ANYTHING. Probable cause allows an arrest, but it doesn't compell anything. I don't carry a shyster around with me to make these decisions, and if I did, which one : the defense, the prosecution or the judge shyster ? Are you great thinkers going to have the 9th circuit hooked and booked when SCOTUS reverses one of their evidence admissability decisions ?
..The trial judge lets it in, the appelate court throws it out, the state supreme court lets it back in, finally SCOTUS throws it out, years later. Which one of you diminuitive Darrows is going to stand me up in front a jury of MY peers and tell them that I committed a crime ? When half the judges who reviewed, heard or read the case thought my search was legal and justified.
7.22.2008 12:52am
Oren:
Dave D. part of the point of the exclusionary rule is that it prevents us from having to punish cops that make marginal choices.
7.22.2008 12:54pm
ken (mail):
I think this is a reasonable explanation of the development of the exclusionary rule. I have argued in numerous letters to magazines and newspapers, over the years, that the exclusionary rule needs to be revisited. I think there should be a legislative remedy to improperly obtained evidence. One that does not allow the throwing-out of truthful evidence. Throwing out such evidence is not in the interest of justice. Perhaps investigators could be held in contempt of court, for example, or suffer some other penalty. The fact that a policeman would be willing to risk his or her own freedom and career to obtain evidence leading to the conviction of a true public enemy, should be taken into consideration in a court of law.

Btw, reading between the lines on this thread, there is a strong divergence of opinion between those who seem to use illegal drugs and those who don’t.
7.22.2008 3:59pm
Dave D. (mail):
..Yes Oren, it does, but it's both the best of all rules, and the worst. It does not have any life changing effect of egregious behavior of cops. Torture, brutality, false witness, all the misbehaviour that powers' corruption engenders, are uneffected by this rule. I want bad cops fired, prosecuted and imprisoned. Not gonna happen by this rule. I think Prof. Kerr is right about the exclusionary rule being ( almost ) completely within the control of the judiciary. It's been my experience that the judiciary is loath to make itself a complainant to the executive branch. Most bad behaviour discovered by judges does not prompt notification to the Police Department. The few that do get reported truly horrendous, but if you worked the street you'd have seen and heard these guys doing and alluding to a long pattern of misbehaviour. The jerk cops worked there way up the felony ladder of assault under color of authority.
...The problem is separating the sheep from the goats. Punishing cops for bad application of confusing, arbitrary and contradictory evidentiary rules is a fools game. The system is already at overcapacity. The mugs here who so blithely suggest punishing judgement errors had best clean up the justice systems dogs-lunch-of-a-mess first. It's hard enough to convict the stupid, ignorant, viscious bastards now. Trying to prosecute evidence gathering mistakes will put the exclusionary rule, not the cops, on trial. Does anyone here really think you're going to get twelve men and true to understand the nuances of why it wasn't reasonable to search the dope dealer who ran when the cop stopped and who had the dope on him ? Try telling that jury that the cop screwed up when he found the 12 year old rape victim in the trunk. I DARE ya. Tell them furtive movements and a stop sign violation wasn't enough to open the trunk, that the cop should go to jail and the baby raper should be let go and given a million or two of their money for his inconvenience. I DARE ya. Black robed bodies will be hanging from lamp posts.
7.22.2008 5:05pm