The exclusionary rule is the policy that an evidence obtained from illegal search and seizure of done by law enforcers cannot be employed as evidence for the prosecution of the accused. As controversial as it seems, there are several contending schools of thought regarding this policy. As a matter of fact, there has been varying jurisprudence that laid down contesting doctrines. The Mapp v Ohio case, among all the cases that pertains to the exclusionary rule, has the final say. It has laid down the doctrine that evidence obtained in violation of an individual’s right to privacy against illegal search and seizure cannot be used in the prosecution and conviction of the accused.
The real issue that should be resolved regarding this policy is whether or not there is a remedy to the weakness of the exclusionary rule; that is, criminals can get away from their crimes just because the police officer arresting him did not exercise due diligence or take advantage of his power in obtaining the evidence used against him.
There are a number of proposals submitted to remedy this issue of the judiciary. The one discussed in this paper would be the one proposed by Calabresi. However, just like any other proposal, his also suffered criticisms from different aspects of the judicial and the executive department. Nevertheless, the proposal of Calabresi makes sense in a partial way. Police officers should be the ones punished instead of the victims who are deprived of justice because the evidence can no longer be used to prosecute the accused.
The only remedy is not anything else but to retain the exclusionary rule and to add the system of punishing any law enforcer who violates the right of every individual against illegal search and seizure.
The Exclusionary Rule
In present day legal matters, the exclusionary rule is one of the most controversial topics extensively debated by law enforcers, criminal jurists, and legislators alike. As a matter of fact, it has been considered as more controversial than the topic on abortion or the Bush v Al Gore rivalry to the extent that it has divided the United States into two separate schools of thought; the conservatives and the liberals. For the conservatives, the exclusionary rule is so absurd that it would serve as a saving grace for criminals as a consequence of violations in legal and court technicalities. For the liberals, it is important for the protection of privacy among ordinary citizens against the intrusion of police and government powers. This privacy is especially enshrined in the Fourth Amendment of the United States Constitution that “No person shall be deprived of life, liberty, and property without due process of law”.
The issue lies on the admissibility of the pieces of evidence that were illegally seized based on the standards of the constitutional rights and legal requirements. The method to which the evidence is gathered would affect its truthfulness to the extent that when it is illegally seized, they will no longer be admitted as evidence so that criminals will be released from their liabilities due to the fault of law enforcers. This is reiterated by a number of conflicting cases in the US jurisprudence. One would be Terry v. Ohio, where the idea of “stop and frisk” was introduced. The case ruled that the search by police detective Martin Mcfadden to John Terry and Richard Chilton was reasonable and that the guns seized were admitted as evidence in the prosecution. This is for the grounds that the police officer had probable cause to believe that Terry and Chilton were about to commit a crime. On the other hand, the case of People v Cahan, the Supreme Court of California ruled that it is time for the state to adopt the exclusionary rule because it is convinced on the notion that the only available remedy for police officers to secure compliance with the constitutional provision on search and seizure is the exclusionary rule.
This controversy did not come in the midst of the present United States without its root in the past jurisprudence. As a matter of fact, before it has become a controversy, there have already been a number of resolved cases pertaining to exclusionary rule. However, during those times, there has been a huge disparity among the resolutions of such cases. At the onset, the first resolution rendered by Justice Roger Traynor was against the idea of the exclusionary rule. In fact, a number of Justices ruled that illegally seized materials should be admitted as evidence in courts. However, 13 years after, particularly in the year 1955, majority of the Justices were compelled to overrule their past decisions and finally adopt the exclusionary rule. This is because the courts observed that law enforcement officers have already taken advantage of the practice of searching and seizing in violation of the constitutional provision. Specifically, Justice Traynor commented that law enforcers have deliberately and flagrantly violated the constitutional prohibitions as part of the performance of their duties.
Furthermore, the history of the exclusionary rule shifted from one scale to another. The cases that are worth mentioning include People v Defore, Wolf v Colorado, and finally Mapp v Ohio. In People v Defore, New York Supreme Court decided that it will not adopt the exclusionary rule and will continue to accept pieces of evidence out of illegal seizure because they believe that the exclusionary rule is not only the way to enforce the Fourth Amendment of the US Constitution. In addition, the Wolf v Colorado ruling reiterates the one in People v Defore and contends that there are still other alternatives to the exclusionary rule. However, the case that gained the final say among the enumerated cases is Mapp v Ohio. In this case, the Supreme Court finally ruled that other remedies such as tort remedies, criminal procedure, and internal discipline do not work. Since then, the Mapp case served as a precedent to all cases involving the admissibility of illegally seized pieces of evidence.
The Mapp ruling was not only a precedent but was also the pioneer of all the controversies regarding the exclusionary rule. As a matter of fact, more than a precedent, it has dramatic and traumatic results. A number of prosecutors and law enforcers were revolutionized inn maintaining the Mapp ruling. As a matter of fact, the Mapp ruling has rewritten criminal law doctrines and procedures which have admitted any kind of evidence regardless of the method where it was obtained. Most importantly, it has disabled a lot of law enforcement officers from convicting a criminal.
This is now the dilemma that both the judicial and the executive branch of the government need to address. There are contending schools of thought regarding this issue. The opponents of the exclusionary rule contest that the very reason of less criminal prosecutions and convictions would be the inadmissibility of evidence against the accused. The prevalence of this rule presupposes removed opportunity to develop a sanction to erring police officers and alternative methods in enforcing the Fourth Amendment.
Given this dilemma, Judge Calebresi (2003), in his article published in Harvard Law Journal, proposes what he called half-baked solution to the problem. He proposes that criminals or even convicts should be given an incentive of lowering their penalties whenever they contest for the legality of how the evidence against them was obtained. He suggests that after the defendant’s trial, even after conviction has already been passed, defendants or criminals should be given an opportunity to claim the incentive whenever it is alleged that the evidence used by the prosecution was illegally obtained by the law enforcers. According to Judge Calebresi, this is a way of encouraging convicts to institute a claim regarding the evidence against them.
This would be a positive way in deterring police officers’ illegal conducts regarding the collection of evidence against a defendant. Because of the incentives discussed earlier, convicts will be encouraged to report police misconducts for their own benefit. The system can be summarized as a combination of incentives and punishments. Incentives for the criminals or convicts on virtue of revealing the illegal acts of the police officer and punishment for the erring law enforcers will serve to deter the taking advantage of the power imbued upon law enforcers. The suggestion does include the traditional exclusionary rule. As a matter of fact, it has ruled out the practice that illegally seized evidence is not permissible to prosecute an individual. The suggestion only revolves on the incentive-punishment system.
However, as Calabresi has badged it as half-baked, Yale Kamisar (2003), in his article In the Defense of the Search and Seizure Exclusionary Rule published in the Harvard Journal of Law and Public Policy, somehow bashed the idea of Calabresi. The first argument is addressed to the incentive part. Kamisar (2003) contends that this suggestion would not in any way impact the police for the reason that law enforcers would want prosecution and conviction more than anything else. Another argument is the fact that a criminal or a defendant is prosecuted based on evidence that is obtained based on a violation of the rights that the Constitution should protect. In this case, police officers would not care whether or not they have legal evidence, the only thing important is that they create conviction. The punishment against the erring officer meets another criticism in Calabresi’s proposal. According to studies, sanctions such as individual punishment would most likely to be resisted by police officers. They admit that they would prefer indirect sanction such as the exclusionary rule rather than direct sanctions such as suspensions from service.
As discussed earlier, the exclusionary rule has produced controversies, problems, and dilemmas that were addressed by the judicial department for the past century. Still, it remains imperfect despite a century of evolution. The issue is really on how the government could protect the right to privacy of every individual without having to rob the law enforcers of their power to extract evidence, prosecute, and convict criminals. There are two concerns involved here: First is the right to illegal search and seizure guaranteed by the US Constitution, and second is the right of every individual to be safe in a society free of criminals. These two concerns should be reconciled in such a way that citizens and individuals are guaranteed of a society that is safe both against invasion of one’s rights to privacy and security.
The exclusionary rule, since the ruling in Mapp v Ohio, has addressed only one concern; that is, the right of every individual to privacy against illegal search and seizure. However, it undermines the fact that criminals get away from their criminal liability for the reason that cannot be impugned on the victim but on the law enforcer who is supposed to bring justice. The remedy proposed by Calabresi makes some sense. He is right in imposing criminal liability or tort liability on police officers who negligently or willfully violate the right to privacy against illegal search and seizures in obtaining evidence. This is the only way we can assure every citizens protection against illegal search and seizure and security against criminals.
Calabresi, G. (2003). The Exclusionary Rule. Harvard Journal of Law and Public Policy, 26 (1), 111-118.
Kamisar, Y. (2003). In the defense of the Search and Seizure Exclusionary Rule. Harvard
Journal of Law and Public Policy, 26 (1), 119-142.