EXCLUSIONARY RULE IN HISTORICAL PERSPECTIVE - THE STRUGGLE TO MAKE THE FOURTH AMENDMENT MORE THAN 'AN EMPTY BLESSING'

• NCJ Number: 54740
• Journal: Judicature Volume: 62 Issue: 7 Dated: (FEBRUARY 1979) Pages: 336-350
• Author(s): Y KAMISAR
• Date Published: 1979
• Length: 15 pages
• Corporate Author: American Judicature Soc
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America

Annotation

ARGUMENTS FOR THE ABOLISHMENT OF THE EXCLUSIONARY RULE PRESENTED BY JUDGE MALCOLM WILKEY ARE CHALLENGED BY MEANS OF AN HISTORICAL EXAMINATION OF THE PERIOD WHEN THE POLICE AND COURTS OPERATED WITHOUT IT.

Abstract

JUDGE MALCOLM WILKEY, IN HIS ARTICLE 'THE EXCLUSIONARY RULE: WHY SUPPRESS VALID EVIDENCE?' (NOVEMBER 1978), ARGUES THAT THE EXISTENCE OF THE EXCLUSIONARY RULE (THE INADMISSABILITY OF EVIDENCE OBTAINED ILLEGALLY) STIMULATES THE CONFIDENCE OF CRIMINALS TO COMMIT CRIMES WITHOUT FEAR OF PROSECUTION, THUS CAUSING INCREASES IN CRIME RATES AND PRECLUDING THE DEVELOPMENT OF ALTERNATIVE MEANS OF ENFORCING THE FOURTH AMENDMENT. THESE ARGUMENTS CANNOT BE SUPPORTED WITH EMPIRICAL EVIDENCE NOR BY AN EXAMINATION OF THOSE PERIODS OF HISTORY WHEN THE EXCLUSIONARY RULE WAS NOT IN EFFECT. AN EXAMINATION OF CRIME RATES BEFORE AND AFTER THE IMPLEMENTATION OF THE EXCLUSIONARY RULE DOES NOT SHOW THAT THE EXCLUSIONARY RULE HAD ANY SIGNIFICANT IMPACT ON INCREASING CRIME RATES. ALSO, THE ABSENCE OF THE EXCLUSIONARY RULE DID NOT STIMULATE ANY ALTERNATIVE EFFECTIVE MEANS FOR ENFORCING FOURTH AMENDMENT GUARANTEES IN POLICE EVIDENCE-COLLECTING BEHAVIOR. IT WAS BECAUSE OF THE INCREASING AND EXPANSIVE VIOLATION OF SEARCH AND SEIZURE LAWS BY LAW ENFORCEMENT PERSONNEL THAT THE SUPREME COURT IMPOSED THE EXLUSIONARY RULE ON ALL STATES (MAPP V. OHIO, 1961). IT APPEARS THAT THE DESIRE TO ABOLISH THE EXCLUSIONARY RULE IS BUT AN EXPRESSION OF FRUSTRATION WITH THE FOURTH AMENDMENT ITSELF, SINCE ADHERENCE TO THAT AMENDMENT WOULD HAVE THE SAME EFFECT AS THE EXCLUSIONARY RULE, I.E., THE ABSENCE IN COURT OF ANY EVIDENCE THAT COULD ONLY HAVE BEEN OBTAINED ILLEGALLY. IF THE EXCLUSIONARY RULE IS TO BE DISCARDED, LET IT BE ONLY AFTER A MORE EFFECTIVE OR EQUALLY EFFECTIVE ALTERNATIVE FOR ENFORCING THE FOURTH AMENDMENT HAS BEEN FOUND; OTHERWISE, WE WILL BE DOOMED TO REPEAT THE ABUSES OF THE PERIOD PRECEDING THE IMPLEMENTATION OF THE EXCLUSIONARY RULE. (RCB)