Equivalent Deterrence as a Proposed Alternative to the Exclusionary Rule in Criminal Proceedings

• NCJ Number: 123488
• Journal: Criminal Justice Journal Volume: 11 Issue: 2 Dated: (Spring 1989) Pages: 357-380
• Author(s): R M Hardaway
• Date Published: 1989
• Length: 23 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

In light of heightened criticism of the exclusionary rule, this article examines possible alternatives that would provide deterrence and judicial integrity. The exclusionary rule is examined to illustrate its ineffectiveness in deterring police misconduct and protecting judicial integrity.

Abstract

Alternatives to the exclusionary rule including internal police discipline, criminal prosecution, and civil redress are reviewed despite being rejected in previous Supreme Court decisions. Alternatives typically fail due to administrability problems or inability to deter police misconduct. An alternative is proposed that allows the prosecution the option of dropping the case, proceeding without the excluded evidence, or proposing a plan to the court that would compensate the defendant for the damage incurred due to the illegally obtained evidence and therefore proceeding with the illegal evidence. The alternative is characterized by equivalent deterrence in the sense that the sanction imposed for the violation would be proportional to the seriousness of the violation. This is an advantage over the exclusionary rule which excludes the evidence regardless of the seriousness of the violation. Finally, the alternative is claimed to have the advantage of deterring police conduct to the extent that the State and, ultimately, the public would be willing to pay compensation. 112 footnotes.