NCJ Number
90632
Journal
South Texas Law Journal Volume: 23 Issue: 3 Dated: (1982) Pages: 530-557
Date Published
1982
Length
28 pages
Annotation
Three viable alternatives to the exclusionary rule would be a system under which the executive branch disciplines its own people, the creation of a civil tort remedy for victims of searches and seizures, and trials of police officers who are alleged to have made illegal searches.
Abstract
The exclusionary rule produces 12 major adverse effects, the worst of which is that it allows innumerable criminals to go free due to dismissals or to failures to prosecute in anticipation that the case will be dismissed due to the exclusionary rule. Proponents of the rule assume that no alternatives exist to the rule. However, the executive branch could investigate, try, and punish misdeeds of law enforcement officials without having any impact on the trial of the original person who is accused of a crime. A civil tort remedy under the Federal Tort Claims Act or elsewhere would give victims of searches and seizures a claim against the government regardless of whether or not the search revealed incriminating evidence. Even in the absence of congressional legislation, the judicial system could conduct a minitrial of the alleged offending officer after the trial of the original accused for the substantive crime. In such cases, the officer's conduct would be totally irrelevant to the guilt of the defendant. The mystique surrounding the exclusionary rule is the greatest barrier to substituting any more effective alternative. In addition, it has been argued that the exclusionary rule is constitutionally mandated. However, only two justices have pronounced in an opinion that the exclusionary rule is constitutionally mandated. Five have indicated that the rule is not required to uphold the provision against unreasonable searches and seizures. A total of 94 reference notes are provided.