NCJ Number
74329
Journal
Prosecutor Volume: 15 Issue: 5 Dated: (1980) Pages: 348-353
Date Published
1980
Length
6 pages
Annotation
The exclusionary rule is discussed in terms of current problems with the rule's application, purpose of the rule, proposed alternatives, and the author's concept of the most effective solution.
Abstract
The exclusionary rule has been the subject of debate for over 60 years. It is an emotional as well as a legal issue, for there are those who regard the exclusionary rule as a symbol of our commitment to protect citizens against abuse by law enforcement officers. On the other hand, many people see the rule as symbolizing the manner in which attorneys and the courts have allowed technicalities to triumph over the search for truth. A review of the rule's application and development leads to several conclusions. First, the rule has failed to live up to the expectations of those who framed it. Second, it is of questionable effectiveness in deterring improper police conduct. Third, search and seizure laws change so frequently and are so complex that no law enforcement officer can reasonably be expected to know them in their entirety. As a consequence of rule implementation, truthful, reliable, and probative evidence is frequently kept from the trier of fact in criminal cases. Alternative proposals focus on exclusion of evidence obtained in 'substantial violation' of proper police practices, exclusion for inadvertent violations, allowing even illegally obtained evidence to be admitted in serious cases such as murder and rape, or imposition of penalties against offending officers rather than excluding illegally obtained evidence. Other proposals involve positive incentives for officers, administrative handling of police violations, or establishment of a constitutional claims court for those who feel victimized by police misconduct. The article also suggests developing a code of search and seizure law that is simple and straightforward, and to which every policeman could be held accountable. Evidence would only be excluded if obtained in a manner which as shocking to the conscience, and would not be excluded if adequate means of redress existed in the civil court or disciplinary structure. Evidence obtained through a warrant would not be excluded unless the warrant was obtained through misrepresentation. Twenty-eight footnotes are included in the article.