On the Exclusionary Rule

 Posted by on 11 July 2012 at 8:00 am  Crime, Law
Jul 112012

In the Rapid Fire Questions of the June 24th episode of Philosophy in Action Radio, I answered a question on the exclusionary rule. Obviously, I’m not any kind of legal expert, but I’m highly suspicious of (1) excluding relevant facts from a criminal trial and (2) discouraging rights-violations by impairing the prosecution of the criminal, rather than by punishing the culpable government official. Hence, I doubt that the exclusionary rule is the proper remedy for illegally-obtained evidence.

William E. Perry — my friend and, more relevantly here, former Arizona prosecutor — sent me the following brief comments in e-mail. I found them quite interesting, so I’m reposting them here with his permission.

Greg talked about planting evidence. That is rare and should be harshly punished. The main problem is failure to follow the 4th amendment by searching without probable cause, or failing to get a warrant when required when obtaining physical evidence. To be fair to the police, the rules are sometimes arcane and complex. However, violations can be dealt with in three ways. The first is by job discipline, up to and including termination. The second is by lawsuits with monetary damages awarded to the victim of the illegal search. The third is by criminal prosecution. Greg mentioned an ombudsman. I would set up a special prosecutor’s office with lawyers and investigators. There would have to be specific laws passed for them to enforce. The evidence would be admitted regardless of the violation.

The second category of violations is in questioning of suspects. Diana has discussed that at length previously when talking about confessions. The same three remedies can be applied for violations. There is already a set of rules for admissibility with statements, although Miranda violations could be handled differently then they are. In any case there is a two step process for determining voluntariness. The first is by the trial judge, and the jury is also required to find the statement to be voluntary before considering it. (Although I’ve never known of a jury rejecting consideration of a statement by a defendant on voluntariness grounds.) Since I think this has more to do with the risk of false confessions I would argue that this type of violation should be punished as above, but that the current law should still be applied as to admissibility.

My prior discussion of coerced confessions can be found here. (That was such a fun research question for me, and I really benefitted from William’s help!)

William is absolute right to distinguish between illegally obtained physical evidence and illegally obtained confessions. The former should not be excluded from trial, while the latter should be excluded. Both, however, should be prosecuted as serious rights-violations when done willfully. The government’s agents of justice should not be above the law.

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