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On The Ligitimacy Of The Exclusionary Rule

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Category: Philosophy

Autor: reviewessays 27 September 2010

Words: 2234 | Pages: 9

The proposition that the exclusionary rule should be abolished is absolutely preposterous. In fact, there are few rules that are as useful in protecting the rights of the general public. Unfortunately, there are many who believe, for a number of reasons, that the exclusionary rule does more harm than good, and that American society suffers needlessly for the sake of protecting the rights of those who violate its laws. Opponents of the exclusionary rule perceive its gains to be dubious; its costs overwhelming. This perception is a flawed overestimation of the results of the rule's principles. The principle in this case is that the exclusionary rule serves to protect the rights of the accused, and is specifically designed to create an incentive for police officials to obtain evidence without violating the rights of the accused. Should it be found that the evidence obtained was done so illegally, then the evidence is inadmissible in a court of law. The point at which most desire to attack the exclusionary rule is that it enables those who are found with incriminating items to walk free. The most ardent critics of the exclusionary rule underestimate the good done by the rule, while appealing to commonly held paranoia of losing a war on crime in order to exaggerate its weaknesses.

The reason we make such a priority out of protecting the rights of the accused is for a very specific and simple reason: to prevent the rights of the innocent. The exclusionary rule can trace its origins to the fourth amendment, which protects us from illegal searches and seizures. Weeks v. United States set a precedent for a manner in which the judicial system can effectively enforce the fourth amendment. This principle was articulated by Justice Day in the following passage:

The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures...should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights (Arthur & Shaw 357).

Additionally, the Supreme Court has also established the exclusionary rule as being "an essential part of both the Fourth and Fourteenth Amendments" (Arthur & Shaw 357). What can be ascertained as a result from these two passages of legal opinion delivered by the highest court in the land is that the reason we have and adhere to the exclusionary rule is in order to defend our basic constitutional rights.

However, there are some that would prefer that we not bother with said protection, and exchange our personal rights to privacy for a safer society. If only things were that simple. There are several objections to the exclusionary rule, and some of them effectively point out the shortcomings thereof. However, none of them separate nor all of them together constitute a valid case for the abolition of the exclusionary rule.

The first objection is a common sense rationale that the function of the exclusionary rule is to let the guilty go free on the grounds that the evidence collected against the defendant was done so illegally. Based on this fact, there are three arguments against the ruling. The first is the utilitarian rationale that letting guilty people loose on the grounds that the evidence against them was illegally places more criminals on in society than would otherwise be without the exclusionary rule, thus creating a danger to society. The second objection based upon this fact is the nonconsequentialist argument that the exclusionary rule is unfair to those who are legally convicted of crime, considering the fact that others who possibly commit worse crimes are not incarcerated because they were fortunate enough to be arrested by a half-wit. The third objection based upon this fact is that it hampers the abilities of the police force to fulfil their obligation to society by restricting their methods of gathering sufficient evidence to convict.

I would choose to reply to these objections by asserting that it is far more important to ensure the protection of the individual rights of every citizen than it is to ensure the safety of the general public. Upon reflection, this is a point that is difficult to deny. From an idealist perspective, it would be difficult to enjoy a crime-free world without individual rights. It is the function of the exclusionary rule to provide an incentive for police to be able legally procure enough evidence to ensure conviction of the factually guilty. Moreover, there is very little conclusive evidence that the exclusionary rule actually does free a significant number of otherwise guilty individuals. In a study of 2,804 cases studied by the Comptroller General during a two month span, only 0.4 percent of these were declined by the prosecutors as a result of the exclusionary rule. This amounts to approximately 11 cases out of 2,804 which were not prosecuted because the evidence collected was done so in such a gross violation of the defendant's rights that it would be futile to attempt to secure a conviction. From the same study, it was found that in 1.3 percent of these cases was evidence excluded from the trial due to a Fourth Amendment motion. This would mean that in 36 out of 2,804 cases in two months was evidence even suppressed by the exclusionary rule. Furthermore, in more than half of those trials where evidence was excluded the defendant was still convicted (Arthur & Shaw 357). This is factual evidence concluding that not only does the exclusionary rule let the guilty go free far less frequently than opponents of the rule would like us to believe, but also that illegal searches rarely take place to begin with due to the rarity that society fails to press charges on those grounds, and the rarity that evidence is similarly excluded.

This conclusion relates closely with another objection to the exclusionary rule that I wish to examine here. In his Critique of the Exclusionary Rule, Malcolm Richard Wilkey objects to the rule on the grounds that it poses far too much of a burden to the Judicial system for it to be useful. He cites a study performed by the General Accounting Office that describes the occurrence of Fourth Amendment suppression motions as being by far the most commonly used motion, at a staggering 60.1 percent of all motions filed by the defense in criminal cases. While Wilkey claims that "the burden on the trial court is undeniable," I am very reluctant to admit that this evidence proves anything beyond the fact that Fourth Amendment suppression motions are common. Wilkey fails to prove how the time taken to investigate a Fourth Amendment violation interferes with the defendant's right to due process. Moreover, I find it very difficult to believe that even if it were the case that the defendant does not receive as speedy a trial as he would were he not to file a Fourth Amendment suppression motion, that he would have any reason to complain, especially if the ruling is in his favor. The only people who have cause to complain about the amount of time used to investigate such illegal searches are those who have less of a stake in the ruling than the defendant (e.g. the judge who will be late for his golf game, or the attorney who is just dying to make it to the bar for happy hour).

But I digress. While neither of the two aforementioned arguments against the exclusionary rule are at all conclusive to its abolition, the facts obtained thereof are important in determining the most its valid objection. The prime reason that opponents attack the exclusionary rule is due to the fact that it is based upon the assumption "that it will deter police illegality" (Arthur & Shaw 351). The argument in this case is that it fails to do so; that police still conduct illegal searches and seizures. First of all, because there are still violations of a law is no reason to deem it ineffective and repeal it. One doesn't suddenly permit murder simply because people still commit it. Similarly, one should not permit the police to violate the privacy rights of individuals simply because they still illegally do so now and again. Moreover, I would also argue based upon the factual information presented by Wilkey and Sachs in their debate on the exclusionary rule that the police very rarely commit infractions of individual's Fourth Amendment rights. Note that just over 60 percent of motions filed in criminal cases involve Fourth Amendment violations on the behalf of the arresting police force (Arhur & Shaw 353). Also note that 0.4 percent of the cases in the study cited by Sachs were "declined by the prosecutors," and that evidence was excluded in 1.3 percent of the cases (Arthur & Shaw 357). That said, what one can gather by looking at these three facts is that while the defendant may believe that his rights are actually violated very often, in actuality police illegality occurs very rarely. One must admit that the reason is because the police have a vested interest in securing a conviction, and it is considerably more difficult to do so by violating the rights of the accused, that the police actually do attempt to secure conviction as legally as possible. If this statement is false; if the exclusionary rule in fact does not deter police from illegally obtaining evidence, then it must be because they do not have a vested interest in securing a conviction (or at the very least have an overzealous one), and there is a far deeper problem at hand.

However, I would hope that it is not misconstrued that my support for the exclusionary rule entails a view that it is perfect. The truth of the matter is that the exclusionary rule contains a crucial flaw that should be revised in order to serve the public better. First of all, the exclusionary rule does not hold police at all accountable for their injustices in their methods of obtaining evidence. While it does prevent their evidence from being admitted in a court of law, which can potentially inhibit their ability to convict, the officer himself receives no sanction for his offense. Wilkey describes the alternative of setting up a disciplinary board that would examine instances where officers of the law are accused of violating an individual's Fourth Amendment rights. However, Wilkey makes it clear that the rulings passed by his version of such a board would have no bearing on the verdict in particular. Such a board would be a perversion of justice and morally abhorrent to anyone favoring the cause of individual rights, unless the punishment for a violation of one's Fourth Amendment rights were equal to or greater than that for the crime allegedly committed by the accused. Only then could it be assured that no police official would dare abuse his power in a violation of one's rights.

Another possibility for the state to more effectively show its disapproval for violations of one's Fourth Amendment rights would be to enact a tort remedy, where a defendant could bring suit against the United States for damages resulting from such a violation. Both Sachs and Wilkey describe this possibility in their debate, although Sachs is apparently less than hopeful that this would create a sound remedy for the problem. I would contend that while it would make an excellent supplement to the exclusionary rule, and create further incentive for the police to respect the Fourth Amendment, it would make a shoddy substitute. Were a tort remedy to exist instead of the exclusionary rule, it would simply make it easier for police to commit perjury. Here, I envision police officers consistently lying in order to protect themselves. The problem being the supposed truism that police officials are more trustworthy than the average citizen. Because of this, any court and especially one based upon this tort method would fail to hold a violating police official accountable for his actions.

The exclusionary rule serves its purpose, and serves its purpose effectively. It creates a deterrent for police officers to respect one's individual rights to privacy, and in doing so, forces them to perform their duty in a manner which is more consistent with the ideals of individual rights upon which this nation is based. If it should be at all changed, it should be to hold police officers more accountable for their illegal searches and seizures, as opposed to simply hampering their efforts toward a conviction.


McCloskey, James. "Convicting the Innocent". John Arthur and William Shaw. Readings in the Philosophy of Law. 3rd Edition. Prentice Hall. 2001.

2) Wilkey, Malcolm R. and Stephen H. Sachs. "A Debate on the Exclusionary Rule". John Arthur and William Shaw. Readings in the Philosophy of Law. 3rd Edition. Prentice Hall. 2001.