Comparative Reprehensibility and the Fourth Amendment Exclusionary Rule (From Criminal Law Review - 1989, P 71-120, 1989, James G. Carr, ed. -- See NCJ-121027)

• NCJ Number: 121030
• Author(s): Y Kamisar
• Date Published: 1989
• Length: 50 pages
• Sale Source: Clark Boardman Company, Ltd
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America
• Note: Reprinted from Michigan Law Review, V 86 (1987), P 1-50

Annotation

This article examines the principle of comparative reprehensibility, in which it is argued that a court should feel equally concerned at excluding reliable although unconstitutionally obtained evidence and thereby turning a criminal loose by admitting the unconstitutionally obtained evidence and participating in illegal conduct by the police.

Abstract

Under the law of the fourth amendment, evidence obtained through illegal searches and seizures cannot be used against the defendant at trial. The inability to use such tainted but reliable evidence, some lawyers and judges argue, results in the release of dangerous criminals who can then continue to prey upon society. The article points out that the exclusionary rule is not intended to weigh the seriousness or reprehensibility of the defendant's criminal acts and that the exclusion of illegally obtained evidence from trial is based on a fourth amendment guarantee. Some good faith errors of police in obtaining evidence have been found by the Supreme Court to be exceptions to the application of the exclusionary rule, however. The comparative reprehensibility and exclusionary rule debate is traced through several generations of American jurisprudence, with the conclusion that subjecting the application of the exclusionary rule to subjective judicial interpretation or to a short list of statutory exceptions would do more harm than good. 221 footnotes.