NCJ Number
90633
Journal
South Texas Law Journal Volume: 23 Issue: 3 Dated: (1982) Pages: 558-582
Date Published
1982
Length
25 pages
Annotation
The exclusionary rule should be preserved for its symbolic value and not because of any impact it might be having on society.
Abstract
Although it is almost impossible to determine the deterrent impact of the rule, it does not seem to be having any visible impact on the criminal justice system. To a large extent, the debate over the rule's impact is ideological. Neither side of the debate can cite empirical data providing definitely that the rule does or does not have a deterrent effect. In addition, a growing body of data indicates that few persons arrested are able to use the rule to escape conviction. Moreover, despite rhetoric to the contrary, only a relatively small number of persons charged with violent crimes avoid conviction because of the rule. If the rule has little impact on either police misconduct or the outcomes of those arrested, those who emphasize the values of controlling and punishing crime should be supporting the retention of the rule and those who emphasize the rule of law and civil libertarian values should be arguing for the replacement of the rule with a more effective substitute. However, these groups take precisely the opposite positions, due to their ideological commitments. The true conservative position is that the rule should be preserved because it provides the public with symbolic reassurance that the government is committed to the basic values of privacy, the rule of law, and fairness. Such symbolic commitments are important because they enhance support for the courts and the criminal justice system. Retaining the exclusionary rule would produce this support at little practical cost in controlling or punishing crime. Seventy-eight reference notes are provided.