Sunday, July 20, 2008

The Unique and Controversial American Exclusionary Rule

The New York Times had a great article up on the front page of its site on Friday examining the basically unique nature of the American exclusionary rule.  The article pointed out that no other nation in the Anglo-American legal tradition automatically excludes evidence obtained during an illegal search, and favorably quoted a scholar who argues that there is no evidence whatsoever that the framers intended that such a rule be enshrined in the Constitution (and yes, this really is an article from the The New York Times).  The author then discussed some of the policy pros-and-cons of the rule.

This strikes me as an interesting subject for a poll.  Do you, dear reader, think that (1) the exclusionary rule is required by the U.S. Constitution, (2) isn't actually required by the Constitution but should be maintained as a rule of federal constitutional law under stare decisis, (3) shouldn't be a part of federal constitutional law but should be enacted, in some form, as policy by the federal government and states,  or(4) should be junked outright?  Express your opinion in the sidebar and/or in the comments section.  Personally, I agree that there's no exclusionary rule mandated by the Constitution, at least for Fourth Amendment violations, and that, eventually, that rule should be excised by the Supreme Court from federal constitutional law.  But still, I'm extremely skeptical that other current remedies (ie. civil suits and internal police disciplinary procedures) provide just, reasonably certain, or sufficiently-deterring consequences for willful or reckless violations of the Fourth Amendment.  At this point in my thinking I suppose that I would support federal and state statutory rules that would continue to exclude evidence gained from such obvious violations, though I'd be quite interested to hear arguments from those who favor junking the exclusion option all together (I'm especially looking your way, Tom H.).   

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