Feb 17, 2010

Is the Exclusionary Rule an Endangered Species?

The Exclusionary Rule has been controversial ever since the US Supreme Court enshrined it in the law of search and seizure in the case of Mapp v Ohio in 1961.  The Mapp doctrine is that any evidence that police officers seize in violation of the 4th Amendment is inadmissible at

trial.  For example, assume that police officers conduct a warrantless search of a house in circumstances where they should first have obtained a search warrant from a judge.  Whatever the search turns up- illegal drugs, evidence of a past crime, etc. - would have to be excluded.  If the prosecution does not have enough independent evidence of a defendant's guilt, excluding the illegally seized evidence would result in dismissal of criminal charges.

          According to Mapp, the exclusionary rule deters police officers from conducting illegal searches.  If police officers know that illegally-seized evidence can't be used in court, they won't conduct illegal searches.   But attackers of the exclusionary rule argue that it makes no sense to "let guilty people go free because the constable has erred."

          In recent years, the Supreme Court has reduced the reach of the exclusionary rule.  For example, evidence that a police officer seizes in good faith reliance on a defective search warrant is admissible in evidence.  Nevertheless, proposals to eliminate the exclusionary rule continue to be put forward.

          A 2010 essay by law professors Samuel Estreicher and Daniel Weick published in the Missouri Law Review suggests that law enforcement agencies that establish rules and policies to deter improper searches should be exempt from the exclusionary rule.  They argue that illegal searches can be deterred without freeing guilty criminals if police agencies establish rigorous polices and training programs and discipline police officers who carry out illegal searches.

          Whether or not states and courts accept Estreicher and Weick's proposal, the debate over the wisdom of the Exclusionary Rule is likely to continue in the years to come.