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Exclusionary Rule

Contemporary Issues Paper: The Exclusionary Rule Jennifer Howell November 6, 2010 The Exclusionary Rule and Its Exceptions Introduction: The Exclusionary Rule The Fourth Amendment to the Constitution of the United States protects citizens from unreasonable searches and seizures by law enforcement personnel. (US Const. amend.

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IV) Though the Amendment “forbids unreasonable searches and seizures, it does not provide a mechanism for prevention or a remedy. (Jackson, 1996) After passage of the Fourth Amendment, courts began to make laws regarding the rule against unreasonable searches and seizures.

The courts designed a rule known as the Exclusionary Rule, which provided a remedy for the violation of a suspect’s Fourth Amendment privileges: any evidence seized in violation of the suspect’s rights and protections may not be used against the suspect in a criminal prosecution. The courts have been working and refining the exclusinary rule since its introduction in the 1900’s. (Exclusionary Rule, n. . ) The first case that applied the exclusionary rule was the case of Weeks v. United States, 232 U. S. 393, in which the Supreme Court “held that the Fourth Amendment barred the use of evidence secured through a warrantless search. ” (Exclusionary Rule, n. d. ) The exclusionary rule requires an illegal action by a police officer or agent of the police, evidence secured as a result of the illegal action, and a “casual connection between the illegal action and the evidence secured. ” (Evaluation, n. d. ) Exceptions to the Exclusionary Rule

Since the introduction of the exclusionary rule, courts have found that it can not be enforced across the board, and have carved out a number of exceptions. These are: * The Impeachment Exception This exception allows the Government to offer illegally-seized evidence on cross-examination of the defendant to impeach the defendant after the defendant takes the stand and perjures himself. It should be noted that the exception applies only to the testimony of the defendant, and not to any other witnesses. * The Independent Source Exception

This exception is a way of protecting the government’s case when the evidence was found “through an independent source sufficiently distinguishable to be purged of the primary taint. ” (Jackson, 1996) That is, the evidence was seized not only illegally, but also legally. * The Inevitable Discovery Exception The inevitable discovery exception was established to allow the admission of illegally-seized evidence that, though it was discovered unlawfully and in violation of the Fourth Amendment, would have inevitably been discovered anyway, through lawful means. The Good Faith Exception When an officer acts on a search warrant and discovers evidence, and the search warrant is later determined to be invalid, the evidence can still be used as long as the officers acted in good faith that the warrant was valid at the time of its execution. This exception was developed because the purpose of the exclusionary rule was not designed to punish the errors of judges and magistrates, but to deter police misconduct. (Exclusionary Rule, n. d. ) * The Harmless Error Exception

The harmless error exception allows introduction of evidence as long as the evidence is determined to be “harmless” evidence – that is, it applies to immaterial issues. The evidence and circumstances are reviewed by the court, and the evidence has to be found harmless by a reasonable doubt. (Jackson, 1996) * The Rule of Attenuation The Court established the “rule of attenuation,” which allows the introduction of illegally-seized evidence when “the Fourth Amendment violation is sufficiently far from the discovery of the evidence as to dissipate the taint. (Jackson, 1996) The Courts have provided three factors for Courts to apply to determine if the rule of attenuation applies: “(1) the length of time between the illegality and the seizure of evidence, (2) the presence of additional intervening factors; and (3) the degree and purpose of the official misconduct. ” (Jackson, 1996) Legal Implications of the Exclusionary Rule The exclusionary rule and the development of its exceptions are of vital legal importance to the people of the United States.

The courts have reasoned that illegally obtained evidence can not be used in a trial to do so would be to condone unconstitutional behavior, thereby “compromising the integrity of the jury. ” (Jackson, 1996) The Fourth Amendment is a constraint on the power of the police officers, and gives the officers an incentive to control their power. The exclusionary rule has great legal implications in that it protects American citizens from officers and other State actors who have personal motivations that “may otherwise be in conflict with Fourth Amendment compliance. (Jackson, 1996) In fact, the Supreme Court has held that the abuses that gave rise to the exclusionary rule featured intentional conduct which was patently unconstitutional. (Herring, 2009)

Political & Financial Implications There are political adversaries of the exclusionary rule, who argue that the rule protects criminals. However, studies show that the actual societal cost of the exclusionary rule is relatively small. The cumulative loss in felony cases attributable to Fourth Amendment violations and the subsequent exclusion of evidence is between . 6% and 2. 5%. (Davies, 1983) The exclusionary rule, while seemingly necessary to deter police misconduct, has financial implications in that when evidence is suppressed, the State may be unable to prosecute the case, and not only wastes the time and costs of the police department involved, but also the time and efforts of judges, court employees, and jurors. Interestingly, Mialon found in his study that the exclusionary rule directly reduces searches by police (in that it reduces chances of a successful conviction) and it also indirectly increases them (via an increase in crime).

The exceptions that have been carved out help deter these costs by ensuring that the only cases that are affected by the exclusionary rule are those that truly violated the Fourth Amendment rights of the defendant.

Sources: Davies, Thomas (1983) A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests. 1983 American Bar Foundation Research Journal 611,

622 Evaluation of the Exclusionary Rule. Retrieved November 4, 2010, from http://www. essortment. com/all/exclusionaryrul_rmlx. htm Exclusionary Rule (n. . ). Retrieved November 3, 2010, from http://legal-dictionary. thefreedictionary. com/Exclusionary+Rule Herring v. United States. (2009) 129 S. Ct. 695 (via scholar. google. com)

Jackson, Heather. (1996) Arizona v. Evans: Expanding Exclusionary Rule Exceptions and Contracting Fourth Amendment Protection. The Journal of Criminal Law & Criminology, Vol 86, No. 4. Northwestern University School of Law. Mialon, Hugo and Sue Mialon. Abstract on The Effects of the Fourth Amendment: An Economic Analysis. Retrieved November 6, 2010, from http://jleo. oxfordjournals. org/content/24/1/22. abstract