Pros and Cons of the Exclusionary Rule free essay sample

A 1978 study by the General Accounting Office found that, of 2,804 cases in which defendants were likely to file a motion to suppress evidence, exclusion succeeded in only 1. 3 percent. Moreover, the same study reported that, of the cases presented to federal prosecutors for prosecution, only 0. 4 percent were declined by the prosecutors because of Fourth Amendment search and seizure problems. 5 In 1983, another study found that â€Å"only between 0. 6 and 2. 35 percent of all felony arrests are ‘lost’ at any stage in the arrest disposition process (including trials and appeals) because of the operation of the exclusionary rule. 4. It has led to more professionalism among the police and increased attention to training programs. Fear that evidence will be excluded has forced the police to develop greater expertise in their work. 5. It preserves the integrity of the judicial system, because the admission of illegally seized evidence would make the court a party to violati ons of constitutional rights. 6. It prevents the government, whose agents have violated the Constitution, from profiting from its wrongdoing. Somebody has to pay for the mistake—better it be the government than the suspect who has already been wronged. 7. It protects the constitutional right to privacy. ARGUMENTS AGAINST THE EXCLUSIONARY RULE Opponents, including justices of the Supreme Court, have argued strongly in opposition to the exclusionary rule. Among their arguments are the following: 1. In the words of Justice Benjamin Cardozo, â€Å"The criminal goes free because the constable has blundered. † It is wrong to make society pay for an officer’s mistake—punish the officer, not society. 2. It excludes the most credible, probative kinds of evidence—fingerprints, guns, narcotics, dead bodies—and thereby impedes the truth-finding function of the courts. 3. It discourages internal disciplinary efforts by law enforcement agencies. If police are disciplined when the evidence will be excluded anyway, they suffer a double setback. 4. It encourages police to perjure themselves in an effort to get the evidence admitted. Particularly in major cases, the police might feel that the end justifies the means: It is better to lie than to let a presumably guilty person go free. . It diminishes respect for the judicial process and generates disrespect for the law and the administration of justice. 6. There is no proof that the exclusionary rule deters police misconduct. In the words of Chief Justice Warren Burger, â€Å"There is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials. † 7. Only the United States uses the exclusionary rule; other countries do not. 8. It has no effect on those large areas of police activity that do not result in criminal prosecutions. If the police make an arrest or search without any thought of subsequent prosecution (such as when they simply want to remove a person from the streets overnight or when they confiscate contraband so as to eliminate the supply), they do not have to worry about the exclusionary rule, because it takes effect only if the case goes to trial and the evidence is used. 9. The rule is not based on the Constitution; it is only an invention of the Court. 10. It does not punish the individual police officer whose illegal conduct led to the exclusion of the evidence. ALTERNATIVES TO THE EXCLUSIONARY RULE The continuing debate about the exclusionary rule has produced several proposals to admit the evidence obtained and then to deal with the wrongdoing of the police. Among the proposals are the following: _ An independent review board in the executive branch. This proposal envisions a review board composed of nonpolice personnel to review allegations of violations of constitutional rights by the police. The problem with this alternative is that police oppose it because it singles them out among public officials for differential treatment. Moreover, outsiders are viewed by the police as unlikely to be able to understand the difficulties and dangers inherent in police work. _ A civil tort action against the government. This would mean filing an action seeking damages from the government for acts of its officers. It poses real difficulty for the plaintiff, who would have to shoulder the financial cost of the litigation. Most defendants do not have the resources to finance a civil case, particularly after a criminal trial. Low damages awards against police officers usually discourage the filing of civil tort actions except in egregious cases. A hearing separate from the main criminal trial but before the same judge or jury. The purpose of the hearing is to determine if, in fact, the officer behaved illegally in obtaining the evidence used during the trial and, if so, to impose the necessary sanctions on the officer. Although this is the least expensive and most expedient alternative, its effectiveness is questionable. If the violation is slight, the judge or jury will not look with favor on what may be considered an unnecessary extension of the original trial. Furthermore, if the criminal trial ends in a conviction, the chances of the officer being punished for what he or she did become remote. _ Adoption of an expanded good faith exception. The final report of the Attorney General’s Task Force on Violent Crime in the late 1980s proposed a good faith exception different from and broader than that allowed by the Court in the Sheppard and Leon cases. The proposed good faith exception covers all cases in which the police would claim and can prove that they acted in good faith (not just when the magistrate issues an invalid warrant). It is based on two conditions: (1) The officer must allege that he or she had probable cause for the action in question, and (2) the officer’s apparent belief that he or she was acting legally must be a reasonable one. These are questions of fact that will be determined by the judge or jury. Opponents fear that this proposal would lead to more violations of rights using good faith as a convenient excuse. Good faith is a vague concept that is best determined on a case-by-case basis; it may therefore vary from one judge or jury to another. It is also maintained that this exception discourages training and rewards lack of knowledge. The theory is that the more untrained and uninformed the police officer, the greater the claim to good faith his or her ignorance would permit. ) _ Adoption of the British system. Under the British system, the illegally obtained evidence is admitted in court, but the erring officer is subject to internal departmental sanctions. The objection is that t his system is not effective even in England, where the police system is highly centralized and generally has attained a higher level of professionalization. Internal discipline by peers has been and is a problem in U. S. olicing; the public will most likely view this as an ineffective means of control. OTHER CONSEQUENCES OF OFFICER MISCONDUCT The exclusionary rule is but one of the consequences of an officer’s illegal act. Its effect on the criminal case against the defendant may be significant (admission of the evidence can lead to conviction; exclusion can lead to an acquittal), but it will likely not have a direct or immediate effect on the officer. The prosecution will consider its effort wasted, public money may have been ill-spent and justice subverted, but the officer will not suffer personal consequences except in high-profile cases. There are more direct consequences, however, to the officer for the same act, such as: (1) criminal prosecution under state or federal law (discussed in Chapter 12); (2) a civil liability case seeking damages against the officer (also discussed in Chapter 12); and (3) internal disciplinary procedures. These consequences are not mutually exclusive; they can all take place as a result of an officer’s single act. Example: Officer W maliciously arrests a suspect without warrant or probable cause and then searches her apartment, where Officer W finds drugs. The evidence obtained is not admissible in court because of the exclusionary rule. Officer W may also be criminally prosecuted for false or illegal arrest under the state’s penal code. In addition, the suspect may file a civil liability case for tort or violation of federal rights against the officer in state or federal courts. If held liable, Officer W can be made to pay damages and attorneys’ fees. Officer W may also be disciplined by the department and can be fired from her job, depending upon departmental policy. References Oaks, Dallin H. Studying the exclusionary rule in search and seizure. The University of Chicago Law Review 37.4 (1970): 665-757. Cohen, Jonathan R. Legislating apology: The pros and cons. U. Cin. l. rev. 70 (2001): 819. Verheij, Bart, Jaap C. Hage, and H. Jaap Van Den Herik. An integrated view on rules and principles. Artificial Intelligence and Law 6.1 (1998): 3-26. Mertens, William J., and Silas Wasserstrom. The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law. Geo. LJ 70 (1981): 365. Inbau, Fred E. Public safety v. individual civil liberties: the prosecutors stand. The Journal of Criminal Law, Criminology, and Police Science 53.1 (1962): 85-89. Sunderland, Lane V. Liberals, conservatives, and the exclusionary rule. The Journal of Criminal Law and Criminology (1973-) 71.4 (1980): 343-377. Surette, Ray. The thinking eye: Pros and cons of second generation CCTV surveillance systems. Policing: An International Journal of Police Strategies Management 28.1 (2005): 152-173.