ALTERNATIVES TO THE EXCLUSIONARY RULE IN U.S. LAW - January 18, 2009

It perhaps will not be an overstatement to say that Mapp v. Ohio,

367 U.S. 643 (1961), has been one of the most important cases decided by the U.S. Supreme Court in the last century. Its importance can be measured not only by the impact the ruling has had on the law enforcement’s investigation techniques, but also as it relates to civil rights concepts and the notion of judicial activism. Mapp v. Ohio held that the evidence, which was obtained in violation of the Fourth Amendment, had to be excluded in trials in State courts. The very concept of the exclusionary rule was created a little bit earlier that century in Weeks v. United States, 232 U.S. 383 (1914), which forbade to admit evidence in federal courts that was obtained with methods, which did not conform with the requirements of the Fourth Amendment. Both cases were decided wrongly and did not balance competing interests properly. Both should be overturned, while new and more efficient alternatives to the exclusionary rule should be adopted.          

The rationale behind the exclusionary rule is the protection of the Fourth Amendment’s right to privacy, which is owed to every citizen. The Courts concluded that the Government would never obey its obligation under the Constitutions to respect citizens’ privacy, if it was not penalized by its wrongdoings and violations of that right. Thus, the exclusionary rule was intended to serve as a deterrent against the Government in preserving people’s constitutional liberties. However, this argument merely legitimized distrust to the institution of Government rather than preserved privacy or truly deterred its violations.

When a motion to suppress the evidence is heard by the Court, the defendant’s right to privacy has been already violated and the Court is never able to reverse it.

In almost all cases, the mere fact of being criminally prosecuted causes social rejection, family problems, loss of employment, defamation etc. The exclusionary rule does not mitigate those problems but often worsens them. In a situation when one’s privacy was already violated and incriminating evidence was obtained, it is usually better for a defendant to face a trial and prove his innocence by submitting exculpatory evidence rather than to turn to the Fourth Amendment’s protections. The judgment of acquittal is a sole remedy, which can restore defendant’s reputation and bring him back unharmed to society. The exclusionary rule stops the prosecution, but leaves a defendant socially stained without a possibility to clear his name in the future. In some situations it may be worse than punishment and incarceration. The best example is perhaps the recent story of William Ayers, a radical leftist activist, who founded a terrorist organization ‘Weather Underground’, which conducted a campaign of bombings of public buildings, including the Pentagon and the Capitol Hill, in the 70’s. Mr. Ayers was criminally prosecuted by FBI, however, the wiretapping evidence against him was obtained in violation of the Fourth Amendment and the indictment was dismissed. Mr. Ayers never cleared his name during a trial and therefore became a target of hostile campaign by many mainstream media in the U.S., which investigated his associations with Barack Obama. The damage done to Mr. Ayers’s reputation, and subsequently to his employer’s – the University of Chicago’s reputation, was significant. Because of utilizing the exclusionary rule, Ayers was put in an impossible situation of being considered guilty without a verdict.

As showed at Mr. Ayers’s example, the exclusionary rule does not protect defendant’s right to privacy, but efficiently prevents him from mitigating the consequences of that violation. Therefore the rule socially victimizes the defendant, his family, his employer and everybody who associates with him, including the whole public, which in many situations is required to send a very dangerous criminal back to society without containing him or deterring from committing further crimes in the future.

Perhaps the best argument against the exclusionary rule is that it only sometimes correctly balances competing public policy interests. For example, it was quite easy to agree in Mapp v. Ohio that the exclusionary rule should be a proper remedy for the Fourth Amendment’s violation in that case, because Mrs. Dollree Mapp’s alleged wrongdoing was of quite innocent nature. However, when one applies the same rule to a different fact pattern the results become horrific.

In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court held that the searches and seizures of Coolidge’s property were unconstitutional because the warrants authorizing them were not issued by a neutral magistrate. Edward Coolidge was a murderer of a 14 year-old girl and there was no doubt as to his guilt whatsoever, however the evidence could not be introduced at his trial because of the application of the exclusionary rule. In a fact pattern like that one, the exclusionary rule does not work properly and nobody really benefits from applying it. The emotional devastation done by a defendant to the victim’s family is being multiplied by the fact that the defendant can not be convicted because his right to privacy always prevails and triggers the exclusion of the evidence collected against him.

The public policy interests in the Coolidge case were balanced improperly because although the society expects that an individual’s constitutional right to privacy shall be respected, it simultaneously expects that dangerous criminals would be isolated so that they cannot violate much more important constitutional rights, like for example a victim’s right to life. Both, the defendant’s right to privacy and the victim’s right to life are constitutional rights, therefore trying to protect the first one by increasing the likelihood that the second one will be violated, has not legitimate justification, although that’s often the exact result of Mapp v. Ohio.

One frequently hears arguments that there are no good alternatives to the exclusionary rule and, usually, there are either opponents or proponents of the rule. Nevertheless, there is a third way, which could balance the society’s interests in a much better way. The alternatives are twofold. The first one is to allow the defendant to seek exclusion of the evidence against him in pre-trial proceedings, however based on a modified exclusionary rule. Such a modified exclusionary rule would allow suppressing the evidence only in a situation where a defendant’s right to privacy, which was violated by the law enforcement, is of equal or greater importance than a constitutional right which the defendant deprived his victim of, or is of equal or greater importance than the competing public policy interest.

Applying the modified rule to fact patterns, the exclusion of evidence would occur in the case of Mapp v. Ohio, because the prosecution of the possession of obscene materials is of lesser importance than a defendant’s right to privacy. On the other hand, the evidence in the Coolidge case could not be excluded because the competing public policy interest is of greater importance to society than defendant’s right to privacy, additionally the constitutional right taken away by the defendant from the victim deserves higher protection than the defendant’s legitimate expectation of privacy.

The second approach is based on the same modified rule, however would give a defendant a possibility to seek a review of the admittance of the evidence against him only after a disadvantageous verdict in his trial. In such a way, a defendant would have an incentive to face the charges, present exculpatory evidence and seek acquittal rather than to merely turn to the protections of the Fourth Amendment. This approach could efficiently restore defendant’s reputation in the society and mitigate the results of violations of his privacy. It would eliminate a possibility that the exclusion of evidence would serve as a punishment and cause defamation without a possibility of rehabilitation.     

Modifying the exclusionary rule in the above described way would provide a better interpretation of the U.S. Constitution. There are certain rights, which are more important than the others. A victim’s right to life is a supreme right, which should always prevail over a defendant’s right to privacy. Establishing the hierarchy of the constitutional rights and awarding them proportional protection should be the next step taken by the Supreme Court. The application of the exclusionary rule should be decided on a case-by-case basis.

Sebastian Aulich