Exclusionary rule
In the United States, the exclusionary rule is a legal rule, based on constitutional law, that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law."[1]
The exclusionary rule is grounded in the Fourth Amendment in the Bill of Rights, and it is intended to protect citizens from illegal searches and seizures.[2] The exclusionary rule is also designed to provide a remedy and disincentive for criminal prosecution from prosecutors and police who illegally gather evidence in violation of the Fifth Amendment and its protection against self-incrimination. The exclusionary rule also protects against violations of the Sixth Amendment, which guarantees the right to counsel.
Most states also have their own exclusionary remedies for illegally obtained evidence under their state constitutions or statutes, some of which predate the federal constitutional guarantees against unlawful searches and seizures and compelled self-incrimination.[3]
This rule is occasionally referred to as a legal technicality because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from double jeopardy.
In strict cases, when an illegal action is used by the police or the prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action—this evidence is known as "fruit of the poisonous tree"—can be thrown out from a jury (or be grounds for a mistrial if too much information has been irrevocably revealed).
The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors.
Scope and limitations of the rule[edit]
Scope[edit]
The exclusionary rule does not apply in a civil case, in a grand jury proceeding, or in a parole revocation hearing.
The law in force at the time of the police action, not the time of the attempt to introduce the evidence, controls whether the action is illegal for exclusionary rule purposes.[22]
Criticism and defense[edit]
The exclusionary rule as it has developed in the United States has been long criticized. Judge Benjamin Cardozo, Chief Judge of the New York Court of Appeals between 1927 and 1932, stated that under the rule, "The criminal is to go free because the constable has blundered." Cardozo noted that many states had rejected the rule, but suggested that the adoption by the federal courts would affect the practice in the sovereign states.[43][44][45][46]
In the 1970s, Dallin H. Oaks,[47] Malcolm Wilkey,[48] and others called for the exclusionary rule to be replaced with a comprehensive judicial remedy against all illegal arrests and searches and seizures (e.g., tort remedy). By the 1980s, the exclusionary rule remained controversial and was strongly opposed by President Ronald Reagan, but some opponents began seeking to have the rule modified, rather than abolished altogether. The case, Illinois v. Gates, before the Supreme Court brought the exclusionary rule for reconsideration. The Supreme Court also considered allowing exceptions for errors made by police in good faith.[49] The Reagan administration also asked Congress to ease the rule.[50] It has been proposed that the exclusionary rule be replaced with restitution to victims of police misconduct.[51]
A major criticism of the Fourth Amendment exclusionary rule is that it allegedly defies the original intent of the Constitution. Yale Law Professor Akhil Amar, for example, has argued that "nothing in the text, history, or structure of the Fourth Amendment" supports the rule.[52] Critics like Amar, Oaks and Wilkey point to the fact that the text of the Fourth Amendment does not indicate that illegally seized evidence must be excluded. Some legal historians argue that the Constitution's Framers intended only that victims of unreasonable searches or seizures could file civil lawsuits.
In 2009, Roger Roots presented evidence that the idea of exclusion can be found in the earliest set of law books published in American history.[53] In 2014, Roots elaborated that certain eighteenth-century British law books and pamphlets which discuss the exclusion of illegally seized evidence circulated widely in the American colonies and were owned by numerous prominent Framing-era lawyers and statesmen.[54] Also in 2014, Professor Richard Re proposed that the Due Process Clause provides an ample basis for the Exclusionary Rule.[1]