Exclusionary rule is aimed at procedure, not the truth


Let us say you are a parent who passes your child's room one day and detects a strange odor emanating therefrom.

This odor leads you to believe that your child once again has forgotten that half-eaten egg salad sandwiches must be properly disposed of and not simply filed away for future reference.

Your child not being home, you enter the room and look for the offending sandwich.

Your search leads you to the bureau where, in the bottom drawer, you find not only the sandwich, but a paper bag containing three grams of cocaine.

When your child arrives home, you confront him with the evidence and demand an explanation.

"Hey!" he says. "What are you doing searching my room?"

"That is not the point!" you retort. "The point is the cocaine in your drawer!"

And you would be correct.

But only if you were a parent.

If you were a police officer, your search would be illegal, and it would not matter if you found cocaine or heroin or an Uzi submachine gun in that drawer. It would be thrown out of court.

Evidence obtained as the result of an illegal search cannot be used to convict a person of a crime. And this so-called "exclusionary rule", established for federal crimes in 1914 and applied to all crimes in 1961, is the legal "technicality" that most upsets the general public.

That's because the general public doesn't understand why drugs, guns, knives and other evidence can be made to legally disappear.

But this disappearing act takes place every day in America, and it may play a large role in the O. J. Simpson murder case, where numerous pieces of evidence gathered by police have been challenged by the defense.

Supporters of the exclusionary rule point out that relatively few cases are lost at trial or on appeal because of it.

But some prosecutors say that one-third of all drug cases that are dropped are done so because of the exclusionary rule.

And others claim that due to the exclusionary rule, many fewer people charged with crimes confess today than they used to. Because why confess if a smart lawyer can make the evidence against you disappear?

When the Warren Supreme Court applied the exclusionary rule to the states more than three decades ago, it did so partly in the belief that suppressing illegal evidence would force police to clean up their act and gather evidence only in a legal manner.

But this may show a misunderstanding by the justices of how the police actually operate.

For the most part, police officers consider their jobs well done when they "clear" or solve a case and not when that case is successfully prosecuted months or even years later.

True, a case that is dismissed because of a faulty search can make the police officer look bad and the prosecutor angry, but it is extremely rare for a police officer to be disciplined for an illegal search.

And it is clear that year after year in America, police continue to make searches that courts later determine are illegal.

Which has led some to suggest that if we suspended police officers for illegal searches, rather than excluding the evidence, police behavior would improve and justice would be better served.

The most famous comment on the exclusionary rule came from Benjamin Cardozo, who, before ascending to the Supreme Court, said the exclusionary rule was faulty because it meant the "criminal is to go free because the constable has blundered."

True, the exclusionary rule has been weakened over the years: Evidence obtained illegally may be used if the police would have found it anyway, and illegally gathered evidence may be used to impeach a witness if he takes the stand.

And Chief Justice William Rehnquist has said that the Warren court's decision on the exclusionary rule showed "a mind set more useful to those who officiate at shuffleboard games" than at trials.

But the exclusionary rule is still very much in existence, and in the O. J. Simpson case what is important is not whether the police have actually found a bloody glove or bloody knife or whatever, but how those items were located.

The public thinks trials have something to do with the truth.

Lawyers know they have much more to do with procedure.

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