Acquisition of Evidence for Criminal Prosecution - Some Constitutional Premises and Practices in Transition

• NCJ Number: 86554
• Journal: Vanderbilt Law Review Volume: 35 Issue: 3 Dated: (April 1982) Pages: 501-526
• Author(s): H R Uviller
• Date Published: 1982
• Length: 26 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This discussion of Supreme Court decisions regarding the acquisition of evidence focuses on the recent trend toward a good faith exception to the exclusionary rule and then critically examines traditional procedures for the acquisitory process in the preaccusatory stage of criminal investigation.

Abstract

The Supreme Court 20 years ago articulated that the purposes of the exclusionary rule were both remedial, to restore constitutional rights to the aggrieved party, and deterrent, to discourage unlawful efforts to obtain evidence. The deterrence principle has become the primary reason for invoking the rule, although the Court has also moved toward a vital modification in the good faith exception. This article examines problems that may arise in applying the good faith exception, concluding that the deterrence principle is compatible with an exception for errors of fact made in reasonable good faith by both judicial and police officers. In errors of law, the courts should consider the circumstances, including the seriousness of the crime, the need for evidence sought, and the intrusiveness of the chosen probe. Recognized exceptions to the requirement of warrant are cases involving national security, inadvertent discoveries during otherwise lawful quests or noncriminal investigations, and the exigency principle which justifies bypassing the warrant in an emergency situation. The warrant application remains slow and awkward and could be improved substantially by a telephonic system. This would enhance the warrant principle by putting magistrates at the scene of many events traditionally regarded as specially exigent and would increase judicial supervision over investigative procedures. The article comments briefly on the Court's decisions in other evidence acquisition areas, including the subpoena duces tecum and the lack of distinctions between the ingredients of a warrant for the simple, superficial acquisition and one for the deep and destructive search. The article contains 75 footnotes. For related materials, see NCJ 86552.