The legal dueling at the O.J. Simpson hearing this week has focused on whether certain evidence against him could be suppressed under the "exclusionary rule." That rule says evidence gathered in violation of the Fourth Amendment ("search and seizure") can be excluded from a trial. Judge Kathleen Kennedy-Powell's ruling yesterday that the evidence can be used could determine whether Mr. Simpson goes to trial. A similar ruling at a trial would almost surely be the subject of appeals.
This is fueling public debate about the wisdom of the exclusionary rule. Such a debate has been going on in legal circles for years. One prominent legal scholar has written, "One of the fascinating questions of American constitutional law is, why an exclusionary rule?" Why? Because the Supreme Court once decided that such a rule would stop the police from violating the Fourth's guarantee to people that they be "secure. . . against unreasonable searches and seizures."
This judge-made rule has applied to state and local police departments since 1961. Federal law-enforcement officers were covered for 50 years before that, because of an earlier Supreme Court ruling. Before that, courts believed that "evidence is evidence." No matter how it was obtained.
The trend seems to be back in that direction. The Earl Warren Court after 1961 tended to throw out verdicts based on even technical violations of the Fourth Amendment. After 1969, the court under Chief Justice Warren Burger began balancing protection of Fourth Amendment values with "the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence that exposes the truth" -- a pre-Warren view.
The court under Chief Justice William Rehnquist since 1986 has consistently sided with law enforcement agencies and in the process has narrowed the court's reading of the Fourth Amendment. Today's high court is less concerned with the rights of the accused than any Supreme Court in the past half-century. This comes at a time when there is also growing skepticism about whether the exclusionary rule has achieved its only stated purpose -- deterring unconstitutional searches.
The Fourth Amendment is an important element in the Bill of Rights. It deserves great respect by courts -- which, even in ruling against its use in O.J. Simpson's preliminary hearing, Judge Kennedy accorded it. So does the public's desire for justice and punishment of criminals.