We're Different - Are We Better?

In today's New York Times Adam Liptak continues his occasional series "American Exception" with a look at one of the more controversial bits of the American legal landscape, the exclusionary rule.

Created by the Supreme Court in 1914 and extended to the states in 1961, the exclusionary rule requires courts to suppress (i.e., not consider or not allow a jury to consider) physical evidence obtained in violation of the Fourth Amendment. In other words, if the cops bust into your house without a warrant (or without any recognized exception to the warrant requirement) and find the body of your dead spouse in the living room, the state can't use that as evidence against you in a criminal trial. As you might expect, it rubs some folks the wrong way that (to use Cardozo's turn of phrase) "the criminal is to go free because the constable has blundered." Which may explain why the rest of the world generally doesn't follow suit (although it's a little unclear from the article how true that is).

In truth, it very rarely works that clinically. In fact, after several years in the trenches wrestling with Fourth Amendment issues, I don't think the exclusionary rule works all that well.

For one thing, it hardly ever comes to bear with full force. Courts frequently fold, spindle, and mutilate the teachings of the Fourth Amendment to conclude that no violations occurred in the first place. In fact, my hunch is that courts engaging in those analyses apply some form of the Dirty Bastard Rule to avoid the implications of the exclusionary rule. As a result, Fourth Amendment jurisprudence gets twisted beyond all recognition.

For another, it's not clear that the cops who violate the Fourth Amendment in these cases take it all that personally such that it really deters anybody. Sure, in the dead body case above it probably would. But those cases are exceptionally rare, if not near urban legends. But in your garden variety traffic stop/search/drug case, I doubt anybody really gets all that upset.

So if the exclusionary rule doesn't really do what it's supposed to and has some negative side effects, why keep using it? Well, there isn't really a better option. The status of the law with regards to civil suits against officials who violate the Fourth Amendment is in probably worse shape than the criminal Fourth Amendment law, which is really saying something. Scalia has hung his hat on recent rises in "professionalism" among police, but I'm not sure that really means much, either.

Unfortunately, our uniqueness in this area doesn't equal superiority, at least in my eyes. But to improve, we'd have to scrap the whole damn system and start over, which isn't likely to happen. So it's about the best we've got, for now.