Liberals, Conservatives, and the Exclusionary Rule

• NCJ Number: 74487
• Journal: Journal of Criminal Law and Criminology Volume: 71 Issue: 4 Dated: (Winter 1980) Pages: 343-377
• Author(s): L V Sunderland
• Date Published: 1980
• Length: 35 pages
• Sponsoring Agency: National Endowment for the Humanities
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines both the liberal defenses and conservative criticisms of exclusion, the rule requiring exclusion of illegally seized evidence. Constitutionally based rationales for exclusion are outlined.

Abstract

Liberal and conservative arguments as well as Packer's constructs of due process and the crime control models derive an interpretation of constitutional policy from a preconceived conception of the goals of the criminal process and the role of the judiciary. While conservatives, liberals, and empiricists make the Constitution derivative rather than primary, the due process and judicial review arguments proceed from the Constitution and derive the exclusionary rule from its provision and principles. Furthermore, unlike Packer's due process model which does require exclusion, these arguments do not approach the fourth amendment with a fundamental opposition to criminal sanction. Although the Constitution requires exclusion, it does not suggest or require a maximized restriction on the exercise of official power as do liberal models. On its face, the fourth amendment seems to adopt neither a liberal obstructionist opposition relative to law enforcement nor the conservative goal of apprehension and punishment of criminals as its primary concern. The fourth amendment provides that searches and seizures will be reasonable and that warrants must meet specified requirements. The amendment can accommodate both individual freedom and effective law enforcement. These competing goals should be carefully considered in the course of fashioning substantive rules of the fourth amendment in judicial rulings on exclusion. Exclusion derives from the constitutional provisions requiring that the deprivations of life, liberty, and property be in accordance with due process, which is a natural consequence of the constitutional doctrine of judicial review. Over 295 footnotes are included. (Author abstract modified)