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On the Ligitimacy of the Exclusionary Rule

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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



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