Q: What are the purposes of the exclusionary rule? What affect do
you believe it has on law enforcement? Would you eliminate it? Why or why not?
OUR TEXT: A key issue in the ongoing debate over the exclusionary rule centers on its costs. In a widely cited statement, Chief Justice Burger summed up the critics' position as follows: "Some clear demonstration of the benefits and effectiveness of the exclusionary rule is required to justify it in view of the high price it exacts from society—the release of countless guilty criminals" (Bivens v. Six Unknown Federal Narcotics Agents, 1971, p. 416). One study of police searches in a major American city concluded that 30 percent of the searches failed to pass constitutional muster. Even though the patrol officers knew they were being observed, they still conducted illegal searches. But only a handful of these events were documented in official records because so few resulted in arrest or citation (Gould & Mastrofski, 2004; see also Bar-Gill & Friedman, 2012). The lack of official action, therefore, makes it difficult to truly calculate the cost of the exclusionary rule at subsequent stages of the process. Assessing the number of convictions lost be- cause of the exclusionary rule is difficult, for rea- sons discussed in Chapter 10. Case attrition occurs at numerous stages of the proceedings and for various reasons. Several studies shed considerable light on the topic. Exclusionary rules can lead to the freeing of ap- parently guilty defendants during prosecutorial screening. Prosecutors may refuse to file charges be- cause of a search-and-seizure problem, a tainted con- fession, or a defective police lineup. However, this occurs very infrequently. The Comptroller General of the United States (1979) examined case rejections by U.S. attorneys and found that search and seizure was cited as the primary reason for rejection 0.4 percent of the time. Similarly, a study of seven communities reported that an average of 2 percent of the rejections were for Mapp or Miranda reasons (Boland, Brady, Tyson, & Bassler, 1982). A more controversial study analyzed 86,033 felony cases rejected for prosecution in California. The National Institute of Justice (NIJ) report found that 4.8 percent were rejected for search-and-seizure reasons. The NIJ conclusion that these figures indicated a "major impact of the ex- clusionary rule" has been challenged as misleading and exaggerated (Davies, 1983). Indeed, compared to lack of evidence and witness problems, Mapp and Miranda are minor sources of case attrition. After charges are filed, case attrition can also occur when judges grant pretrial motions to sup- press. But in actuality, few pretrial motions to sup- press evidence are actually filed. Nardulli (1983) reported that motions to suppress evidence were filed in fewer than 8 percent of the cases. Once filed pretrial motions are rarely successful, although the success rate has varied significantly in the research from a low of 0.3 percent (Davies, 1983) to a high of 1.5 percent (Uchida & Bynum, 1991). Piecing together the various stages of the criminal court process leads to the conclusion that the exclusionary rule has a marginal effect on the criminal court system (Nardulli, 1983). Examining case-attrition data from California, Davies (1983) calculated that 0.8 percent of arrests (8 of 1,000) were rejected because of Mapp and Miranda. As for cases filed, Nardulli calculated that 0.57 percent of convictions (fewer than 6 of 1,000) were lost because of exclusionary rules. Moreover, of the lost convictions, only 20 percent were for serious crimes. Weapons cases and drug cases are those most likely to involve questions about police conduct. A special panel of the American Bar Association (1988) likewise concluded that constitutional protections of the rights of criminal defendants do not significantly handicap police and prosecutors in their efforts to arrest, prosecute, and obtain convictions for the most serious crimes. Although many people blame the failures of the criminal justice system on judges' concern for defendants' rights, the blame is misplaced. The main problem is that the criminal justice system is stretched too thin, the Association concluded.
Should the Exclusionary Rule Be Abolished?
The exclusionary rule was controversial when it was adopted in 1961 and remains so today. In a 1981 speech, President Reagan's strong words expressed the views of the crime control model in opposition to the exclusionary rule: The exclusionary rule rests on the absurd proposition that a law enforcement error, no matter how technical, can be used to justify throwing an entire case out of court, no matter how guilty the defendant or how heinous the crime. The plain consequence of treating the wrongs equally is a grievous miscarriage of justice: The criminal goes free; the officer receives no effective reprimand; and the only ones who really suffer are the people of the community. But to law professor Yale Kamisar (1978), illegal conduct by the police cannot be so easily ignored. Here is how he states the due process model case for the exclusionary rule: "A court which admits [illegally seized evidence] ... manifests a willingness to tolerate the unconstitutional conduct which produced it." How can the police and the citizenry be expected to "be- lieve that the government truly meant to forbid the conduct in the first place"? A court that admits the evidence in a case involving a "run of the mill" Fourth Amendment violation demonstrates an insufficient commitment to the guarantee against unreasonable search and seizure. While the Mapp decision remains controversial, the nature of the debate has changed. Initially, critics called for abolition of the exclusionary rule (Oaks, 1970; Wilkey, 1978); now, they just suggest modifications. This shift in thinking is reflected in the Reagan administration's Attor- ney General's Task Force on Violent Crime (1981). Although composed largely of long-standing critics of the exclusion- ary rule, the final report called only for its modification, not its abolition. Among the alternatives proposed, former Chief Justice Warren Burger urged an "egregious violation standard" (Brewer v. Williams, 1977). Others have proposed an exception for reasonable mistakes by the police (Fyfe, 1982). To critics, modifications along these lines would reduce the number of arrests lost because of illegal searches, and the sanction would be more proportional to the seriousness of the Fourth Amendment violation. The Supreme Court, however, has recognized an "honest mistake" or a "good-faith" exception to the exclusionary rule only in extremely narrow and limited circumstances (United States v. Leon, 1984; Illinois v. Krull, 1987). What do you think? Should the exclusionary rule be abolished outright, given "good-faith" exceptions, or kept in its present form? If one admits that there are problems in its current application, what realistic alternatives might restrain law enforcement from potentially conducting blatant and flagrant searches in violation of the Fourth Amendment?
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