Research Proposal on "Exclusionary Rule in Defense"

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[EXCERPT] . . . .

Exclusionary Rule

In defense of the exclusionary rule: A legal overview of a controversial doctrine

"It is better that ten guilty persons escape, than one innocent suffer," said English jurist William Blackstone (Blackstone, 2009, Legal Dictionary). It is this core principle that lies behind the exclusionary rule, one of the cornerstones of American Constitutional law. Many people may agree with Blackstone's principle in theory. But the idea that evidence, if it is illegally obtained, should be excluded from the case submitted to a jury considering a defendant's guilt is often controversial in the court of popular opinion. Countless television shows such as Law & Order revolve around evidence that was obtained by police that is then excluded from a trial, resulting in a guilty person going free, unless the intrepid attorneys can find a way around legal protocol. Many people view the exclusionary rule as letting a defendant go on a mere 'technicality' and some have even said that were the exclusionary rule put to a public referendum, rather than to unelected jurists, it would be voted down.

According to the 4th Amendment of U.S. Constitution, an American citizen has the right to be free from the threat of illegal searches and seizures. "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The exclusionary rule attempts to counteract the possibilities of overzealous or corrupt police conduct by stating that officers cannot use evidence that is obtained illegally in a court of law. In other words, even if a defendant is guilty, he or she may be freed if the only evidence was obtained through police misconduct. This is to act as a disincentive for police to take a 'liberal' interpretation of the law and to exceed their powers of enforcement, thus violating the rights of the citizens they are sworn to protect.

For example: "If a policeman got a tip that a local cab driver, Tom Smith, was moon-lighting as a cat burglar, the officer might launch an investigation and search for evidence that would enable him to arrest and prosecute Smith. But if the policeman decided that the fastest way to find evidence was to break into Smith's home without a search warrant, his effort would be for naught. Even if the police officer discovered seven stolen TV sets in Smith's living room, the case would almost certainly be thrown out of court…Smith's attorney could have the trial judge bar the admission of the stolen goods as evidence since it was obtained through an illegal search. And without that illegally obtained evidence, the district attorney would probably be unable to successfully prosecute a case of theft" (Lynch 1998, p.2). The exclusionary rule thus acts an important 'check 'against the unfettered use of prosecutor and police power by the state and is supported by separation-of-power doctrine (Lynch 1998, p.4).

An offspring of the exclusionary rule is the 'fruit of the poisonous tree' doctrine, namely that no 'fruits' or useful evidence can be used by the prosecution that were obtained illegally from a 'poisonous tree' or illegal search. "Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures. The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial" (Fruit of the poisonous tree, 2009, Legal Encyclopedia). If an illegal search leads to evidence, which then leads to still more evidence, all must be excluded, even if the second phase of evidence gathering was obtained through a legal warrant.

For most searches to be legal, a warrant must be obtained. The law enforcement official must show probable cause that a crime has been committed, take an oath or affirmation, and must describe the place they will search and the specific items they will seize. "Different types of warrants exist. A knock-and-announce warrant requires law enforcement personnel to knock on the door of a residence and announce their identity before entering, giving the owner or occupier an opportunity to answer the door. In 2006, [in Hudson v. Michigan] the U.S. Supreme Court determined that law enforcement's failure to knock or announce when in possession of a knock-and-announce warrant does not necessitate use of the exclusionary rule" (The fourth amendment, 2009, Wex Law)

One reason that so-called 'strict' constructionalists dislike the exclusionary rule is that it is not directly written in the Constitution: rather it has arisen through a tradition of constitutional interpretation since Weeks vs. U.S. In 1914. "This case only applied the exclusionary rule to defendants being prosecuted in federal court. The Supreme Court later expanded the protection to defendants in state in the case of Mapp vs. Ohio in 1961 (Evaluation of the exclusionary rule, 2009, essortment). Conservatives tend to dismiss the intrusiveness of police encroachments into the home or other private places, although it is worth pointing out that such warrantless searches often cause a hostile relationship between a community and the police that ultimately circumvents law enforcement, as well as the fact that surprise searches of home have lead to the death of innocent civilians in some instances (Lynch 1998, p.3). Finally, there is much supporting evidence to suggest that the Bill of Rights was created to protect citizens against the use of their personal property by the state, such as the amendments that also protect against the enforced harboring of soldiers on civilian property. The 3rd Amendment reads: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, or in time of war, but in a manner to be prescribed by law."

Evidence may be excluded only "if there was both an illegal action and a casual connection between the illegal action and the evidence secured and a defense lawyer can make a motion to have the evidence suppressed…If there is an illegal action, but it cannot be proven that the action in question was responsible for the collection of the evidence, the evidence does not fall under the exclusionary rule by the doctrine of attenuation" (Evaluation of the exclusionary rule, 2009, essortment). It is the prosecutor's burden to prove by a preponderance of the evidence that the evidence was collected without violating the defendant's 4th amendment rights. If the prosecution fails to prove this case, the evidence will be suppressed from the prosecution's case. But because the evidence may be used to undercut the defendant's credibility the defense can far from 'rest easy' that the evidence will not hurt the accused. Also, "the illegally seized evidence may also be admissible in grand jury hearings as well as in civil courts" (Evaluation of the exclusionary rule, 2009, essortment). These exceptions undercut conservatives' arguments that the exclusionary is absolute, and inevitably leads to defendants being let go on technicalities.

Additionally, there are three major exceptions to the exclusionary rule that make it easier for prosecutors to bring guilty defendants to justice. For example, the Independent Source Doctrine, which was created by the Supreme

Additionally, there are exceptions to the warrant requirement. For example, objects in plain view seized by officers do not require a warrant, nor do searches conducted in exigent circumstances or in good faith, such as accidentally arresting the wrong suspect and finding that the individual had contraband on his person, or entering a building to assist during an emergency. If an individual gives consent for his or her property to be searched, the police do not need a warrant, and third-parties who own the premises (such as a spouse) may also give access to premises, circumventing the need for a warrant (Fourth amendment, 2009, Wex Law)

Interpretation of the exclusionary rule has gotten more, rather than less complicated over the years. For example, electronic correspondence and data-keeping means that new ways for law enforcement to conduct surveillance and searching now exists: "Many electronic search cases have involved whether law enforcement can search the company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have legitimate expectations of privacy with regard to information stored on company-owned computers" (Fourth amendment, 2009, Wex Law). The U.S. Patriot Act has also complicated questions of what constitutes valid searches and seizures, and what can be excluded under the… READ MORE

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