Term Paper on "Exclusionary Rule Within the Scope"

Term Paper 12 pages (3684 words) Sources: 20

[EXCERPT] . . . .

Exclusionary Rule

Within the scope of the legal system in the United States there is a foundational and unique expression of the checks and balances that are present in the constitution of the United States. Though the laws collectively are called the exclusionary rules, as is the standard of criminal law they are really a collective group of decisions, in local, state, and federal court decisions that establish a set of principles to protect the defendant from illegal search and seizure and illegal coercion of confession. The foundation of the law is the protection of fourth amendment rights,

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. (Fourth Amendment of the U.S. Constitution.).

The exclusionary law or laws, more appropriately, then go on to provide a set of rules that dictate that evidence and/or admissions of guilt obtained illegally will be excluded from being heard in criminal trials. What this quite often amounts to is that criminals who are guilty can go free, if the evidence needed to convict them is tainted in some manner, having been acquired illegally, with certain exceptions, though many argue the exceptions and rules are unclear and are in constant need of redress by the courts.

Chun 2000:799)

Holland 2000:1107)

Questions and controversies about this issue are many and varied. This work will first look at the history of the exclusionary rules, discuss the controversy over its use and retention, explain ways in which it effects law enforcement, discuss good faith violation exemptions and lastly discuss the potential need for change in the manner of adding compensation to the rulings.

Controversy and History of the Exclusionary rule:

Historically there have been many challenges to the exclusionary rules, for the most part because many people both in and out of the legal system do not think the system is working when seemingly guilty people are set free by its use, yet there are also many other reasons why people have been demanding change, almost as long as the laws have been in place. Another substantial argument is that the effectiveness of the rulings is suspect when the rules frequently fail to control corrupt law enforcement practices by officials. A very comprehensive and succinct explanation of the controversy over the exclusionary rule is provided by Dripps in a 2004 article on appellate review of the exclusionary rule published by the Yale Law Journal.

Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. Critics have attacked the exclusion of unconstitutionally obtained evidence for compromising the pursuit of truth in adjudication, for exceeding the constitutional authority of the judiciary, and for fostering police perjury and judicial hypocrisy.

Defenders have laid the blame for the "cost" of exclusion on the Fourth, Fifth, and Sixth Amendments that prohibit the acquisition of reliable evidence when complied with, rather than on the exclusionary rule which operates only when these substantive constitutional provisions are violated.

Exclusionary rule advocates have insisted on the constitutional necessity for some effective remedy for constitutional violations, and maintain that exclusion offers a far more attractive remedy than reliance on damage actions undermined by valuation problems, immunity defenses, and inadequate legal representation.

The Supreme Court seems to have adopted both positions, by continuing to suppress tainted evidence in the government's case-in-chief while also recognizing a host of exceptions to the exclusionary rule. The most obvious of these are the standing doctrine, the good-faith exception, and the impeachment exception.

Dripps 2001:1)

Dripps goes on to discuss the reasons on both sides for the continued debate. Limitations clearly exist with all the proposed and de facto alternatives.

The debate goes on because both tort remedies and the exclusionary rule have important advantages and serious drawbacks. Although appropriate reforms could overcome most of the defects with tort remedies, such reforms depend on appropriate legislation. Given the legislative incentives bearing on law-and-order issues, no legislature has yet delivered such reforms, nor is any likely to do so. Moreover, because constitutional violations ordinarily do not inflict the kind of material injury that our tort system compensates, tort schemes are plagued by the difficult problem of evaluating the plaintiffs' damages. Set too high and the damages would overdeter by inhibiting the police from vigorous action in cases near the border separating lawful from unlawful searches and seizures. Set too low and the damages would render the Fourth Amendment nugatory. The exclusionary rule solves the political incentives problem because the Supreme Court imposed the rule as a matter of federal constitutional law. Exclusion also solves the valuation problem, because exclusion comes very close to setting the sanction equal to the government's illegal gain. Exclusion, however, suffers a serious psychological problem. Judges are reluctant to free obviously guilty criminals. Trial judges, therefore, tilt fact-finding against exclusion, while appellate judges give constitutional rights crabbed and grudging interpretations. As a result, it is fair to say that the Fourth Amendment is still underenforced.

Dripps 2001:1)

There are even several legal experts who believe that the exclusionary rule should not only be upheld but strengthened to include racial discrimination as a potential violation by law enforcement in cases where race can be proved as a condition of the reason why an individual was stopped, arrested and subsequently tried for a given offense. What this would effectively do is link the equal protection laws with the exclusionary rule.

Holland 2000:1107)

Constitutionally-based procedural safeguards such as the exclusionary rule and Miranda warnings, and inveterate evidentiary principles such as the exclusion of propensity evidence, are increasingly viewed as legal "technicalities" that allow violent criminals to escape punishment.(69) They represent not the constitutional mediation of the public's retributive passion but rather devices that impede the search for truth and criminal convictions. (Sheft 1995:67)

The recent development of political entities and vocal action groups who advocate for victims rights, as likely the most ardent opponents of the exclusionary rules have also changed the level of the argument, in a sense giving it a human face, being that of the individual victims who have been forsaken by a system where procedural technicalities freed the accused who likely made them a victim of crime.

The President's Task Force on Victims of Crime aptly summarized this view:[S]omewhere along the way the system has lost track of the simple truth that it is supposed to be fair and to protect those who obey the law while punishing those who break it

You expect the trial to be a search for the truth; you find that it is a performance orchestrated by lawyers and the judge, with the jury hearing only half the facts.(70) (Sheft 1995:67)

The debate over the level of rights that defendants have being to high will surely ensue in the arena of law and civil rights for centuries, this is just one manifestation of the conflict. (Sheft 1995:67) In one source a public debate commentary on the issue of defendant rights is a quote from a leading opponent of the exclusionary rule, on the grounds that defendants have the wrong kind of rights.

So, with that, let me introduce Akhil Amar for a two-minute overview of the subject for tonight, "Do accused criminals have too many rights?" The debaters don't have a lot of rights, because I've got the stopwatch. Two minutes, Professor Amar.AKHIL AMAR: Thank you, Nina. So, the short answer is yes, sometimes they do. The longer, more precise answer is: and often they don't. Most precisely still, they have the wrong kind of rights. We have rights right now that often benefit the guilty without helping the innocent and that indeed sometimes make the innocent worse off. Judge Mikva notwithstanding, I still count myself a liberal and I think liberals should really care about protecting innocent people from erroneous conviction, but the current rules that we have often make their plight worse in order to help guilty people escape conviction. (Totenberg 1996)

Law Enforcement Effects:

The manner in which law enforcement is effected by the exclusionary rule is foundational. It requires, some would argue, as much or more forethought to begin an investigation of a criminal matter than it does for the criminal to commit the act. The exclusionary rule dictates almost every aspect of law enforcement from police action to judiciary results, on the part of the defense and the prosecution, not to mention the judge. Without such a rule there would likely be far more violations of the fourth amendment rights of individuals, yet many are asking if it is time for a change in the manner in which violations of the fourth amendment are sanctioned in the judicial system.

An important principle of twentieth-century American jurisprudence is that evidence acquired through improper conduct by the state cannot… READ MORE

How to Reference "Exclusionary Rule Within the Scope" Term Paper in a Bibliography

Related Term Papers:

Knock and Announce Term Paper

Law Enforcement - Dubious Value of the Knock and Announce Requirement

Constitutional Protections and the Exclusionary Rule:

Wary of governmental intrusions at the expense of individual rights under British rule,… read more

Term Paper 11 pages (3012 words) Sources: 7 Topic: Crime / Police / Criminal Justice

---

Amendment 4 U.S. Constitution Thesis

Fourth Amendment of the United States Constitution

Full Text:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall… read more

Thesis 3 pages (852 words) Sources: 3 Style: APA Topic: Law / Legal / Jurisprudence

---

Concept of Equal Protection Term Paper

Equal Protection

The Supreme Court has played a pivotal role in race relations in the United States. It began by supporting the institution of slavery, going so far as to… read more

Term Paper 10 pages (4130 words) Sources: 12 Style: MLA Topic: American History / United States

---

Diversity in a Police Force Police Departments Research Proposal

Diversity in a Police Force

Police departments in the 21st century enjoy a level of technology that would make Dick Tracy envious, but they are also faced with several challenges… read more

Research Proposal 30 pages (8386 words) Sources: 30 Topic: Crime / Police / Criminal Justice

---

Servant Leadership Does Service-Learning Experience Help Students Research Proposal

Servant Leadership

Does Service-Learning experience help students promote characters of Servant Leadership at Fu-Jen Catholic University and National Taiwan University?

Leadership can be found in many forms. Some leaders are… read more

Research Proposal 20 pages (8247 words) Sources: 6 Style: APA Topic: Leadership / Mentoring

---

View 100+ more related papers  >>