STUDYING THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE

• NCJ Number: 203
• Journal: University of Chicago Law Review Volume: 37 Issue: 4 Dated: (SUMMER 1970) Pages: 665-757
• Author(s): D H Oaks
• Date Published: 1970
• Length: 92 pages
• Grant Number(s): NI-70-013
• Agencies: NIJ-Sponsored
• Publication Type: Research (Applied/Empirical)

Annotation

EFFECT OF THE EXCLUSIONARY RULE ON THE CRIMINAL JUSTICE SYSTEM, PARTICULARLY ON LAW ENFORCEMENT PERSONNEL AND IN THE AREA OF SEARCH AND SEIZURE.

Abstract

IN A SECTION ON THE HISTORY AND SUGGESTED JUSTIFICATIONS OF THE EXCLUSIONARY RULE, THE SUPREME COURT IS QUOTED AS STATING THAT THE SINGLE AND DISTINCT PURPOSE OF THE RULE IS TO DETER LAW ENFORCEMENT OFFICERS FROM FORBIDDEN BEHAVIOR. ALTHOUGH MOST SUPREME COURT JUSTICES AND PROMINENT SCHOLARS HAVE HAILED THE EXCLUSIONARY RULE AS THE BEST AVAILABLE TECHNIQUE, NONE HAS CITED ANY SUBSTANTIAL EVIDENCE THAT IT EFFECTIVELY DETERS IMPROPER LAW ENFORCEMENT BEHAVIOR. A PART OF THE STUDY PRESENTS EMPIRICAL EVIDENCE ON THE EFFECT OF THE RULE ON POLICE SEARCH AND SEIZURE. ILLEGAL SEARCHES AND SEIZURES SEEM TO BE CONCENTRATED ON A FEW TYPES OF CRIME, NOTABLY WEAPONS AND NARCOTICS OFFENSES. THE VARIOUS ASPECTS OF DETERRENCE, POSSIBLE TECHNIQUES, AND AREAS FOR FURTHER RESEARCH ARE DISCUSSED. THE LIMITATIONS UPON THE DETERRENT EFFECTIVENESS OF THE EXCLUSIONARY RULE INCLUDE THE RULE'S PROBABLE INABILITY TO DETER THE LARGE AREA OF POLICE CONDUCT THAT IS NOT INTENDED TO OBTAIN EVIDENCE FOR USE IN PROSECUTION, AND THE FACT THAT THE RULE OPERATES UNDER NUMEROUS CONDITIONS THAT ARE UNFAVORABLE FOR DETERRING THE POLICE. DISCUSSION OF THE VARIOUS ASSERTED NEGATIVE EFFECTS OF THE RULE - THE ASSERTION THAT IT FOSTERS FALSE TESTIMONY BY LAW ENFORCEMENT PERSONNEL OR THAT IT SERIOUSLY DELAYS AND OVERLOADS A CRIMINAL PROCEEDING AND DIVERTS ATTENTION FROM THE SEARCH FOR TRUTH ON THE GUILT OR INNOCENCE OF THE DEFENDANT CONTAINS SUGGESTIONS FOR EMPIRICAL RESEARCH TO TEST THE CRITICAL FACTS. THE ARTICLE CONCLUDES WITH A POLEMIC ARGUMENT FOR ABOLISHING THE EXCLUSIONARY RULE AS TO EVIDENCE OBTAINED BY SEARCH AND SEIZURE, AND REPLACING IT WITH A PRACTICAL TORT REMEDY AGAINST OFFENDING OFFICERS OR THEIR EMPLOYERS. (AUTHOR ABSTRACT MODIFIED)