NCJ Number
90365
Date Published
1982
Length
17 pages
Annotation
The subcommittee should reject S. 101 and S. 751 and be extremely skeptical of the many proposals to modify the exclusionary rule, which has barred unconstitutionally seized evidence from Federal criminal trials for almost 70 years.
Abstract
The exclusionary rule should be maintained in its present form, because (1) the rule is of constitutional origin and beyond the reach of Congress; (2) it results in the freeing of guilty criminals in a relatively small proportion of cases; (3) it deters police and prosecutor violations of constitutional rights to privacy; and (4) it manifests refusal to convict lawbreakers by relying on official lawlessness. S. 101 would admit evidence obtained in violation of the fourth amendment unless a Federal district court finds such a violation to have been either 'intentional' or 'substantial.' In determining 'substantiality,' a court is invited to consider whether the violation was 'reckless,' the extent to which privacy was invaded, the deterrent impact of exclusion on similar violations, and whether the item seized would have been discovered anyway. These considerations suggest admission of the evidence even in the absence of reasonable good faith. In S. 751, which abolishes the exclusionary rule and replaces it with an exclusive tort remedy against the United States for damages resulting from a search conducted in violation of the fourth amendment, official lawlessness is virtually invited. Personal liability and personal expense are not risked by a law enforcement officer in conducting unconstitutional searches and seizures. Fourteen notes are provided.