NCJ Number
81473
Journal
Judicature Volume: 65 Issue: 7 Dated: (February 1982) Pages: 354-361
Date Published
1982
Length
8 pages
Annotation
The historic root of the exclusionary rule in judicial integrity is traced, and it is used as the standard for assessing proposed transformations of the exclusionary rule.
Abstract
In the first clear articulation of the exclusionary rule, Weeks v. United States (1914), the U.S. Supreme Court reviewed a conviction based on evidence obtained in two warrantless searches of the defendant's home. The Court overturned the conviction, reasoning that to accept the evidence 'would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution.' The principle of judicial integrity demanded that the Court not act as an accomplice to the violation of the Constitution. Since Wolf v. Colorado (1949), the notion that the rule operates to deter police illegality has dominated, however. While the notion that the rule could deter police misconduct gave strong support to extending the rule to the States, the Warren Court was reluctant to apply the rule where it would have absolutely no chance of deterring police misconduct. The deterrent rationale thus functioned, much like the attenuation doctrine, to qualify the principled application of the rule with a pragmatic concern for the actual impact of the rule. Critics of the rule advance two major objections: (1) that it allows demonstrably guilty criminals to go free because highly probative evidence of guilt is excluded from trial and (2) that it fails to deter police misconduct. The criticism that the rule does not deter police misconduct can be satisfied by adopting a tort remedy by which victims of police illegality could act directly against the officials and agencies that violate their constitutional rights. Further, much of the criticism of the exclusionary rule could be silenced by courts' recognition that the 4th amendment does not protect illegally held objects, such as heroin or sawed-off shotguns. Only if the defendant can demonstrate a 4th amendment interest in the object seized should it be proper to analyze whether the seizure of the object offended the amendment. Instead of beginning and ending analysis with the search, as is currently done, analysis should begin with an examination of the nature of the objects seized and then progress to the search only when a 4th amendment right is at issue. Such a reformulation of the applicability of the exclusionary rule would meet the concerns of the critics without offending judicial integrity. A total of 69 footnotes are listed.