NCJ Number
123498
Journal
American Criminal Law Review Volume: 27 Issue: 1 Dated: (Summer 1989) Pages: 53-118
Date Published
1989
Length
64 pages
Annotation
The application of exclusionary rules of criminal procedure to constitutional and non-constitutional rights are reviewed.
Abstract
The article examines the nature of exclusionary rules and whether such rules should be applied to behavior that is not anticipated by the Federal constitution. The analysis includes discussion of the nature and derivation of authority to apply exclusionary rules in the non-constitutional setting, judicial discussions reflecting concern regarding such authority, examination of legislative authorization and judicial decision-making that establishes authority, and specific choices necessary to formulate exclusionary rules for non-constitutional legal requirements. Exclusionary rules typically consist of prohibitions of admission in court of evidence obtained illegally by law enforcement officials and are usually derived from the State or Federal constitution or from legislation. The issue remains as to whether courts can apply exclusionary sanctions to rules that are developed and promulgated by the courts, such as the rules of evidence or to local legal requirements. Absent specific statutory authority, the author argues that the judiciary should be cautious, if not prohibited, from creating exclusionary rules for non-constitutional requirements. Examples of specific statutory exclusionary rules are provided and analyzed. Examples of State and U.S. Supreme court reliance on supervisory power to justify exclusionary rules applied to non-constitutional legal requirements are discussed. The author asserts that examination of the derivation of judicial authority to create exclusionary rules yields minimal justification for such authority. Without statutory authority to develop rules of exclusion, alternatives are provided that would minimize abuse of authority. 285 footnotes.