We’ve all seen the scenario played out many times on various TV crime dramas. The police find the murder weapon only to have a judge throw out the evidence because the search wasn’t legal.
The judge invoked a constitutional protection called the exclusionary rule. But the exclusionary rule is not anywhere in the constitution.
The fourth amendment reads,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
There is nothing there about excluding evidence. While its protection against illegal searches and seizures is viewed as the source of the rule, that was not the original understanding. The interpretation of the fourth amendment to require the exclusion of evidence waited until the twentieth century. In 1914 the Supreme Court decision in Weeks v. United States for the first time prohibited the admission of illegally obtained evidence in federal courts. In 1920 the Supreme Court in Silverthorne Lumber Co. v. United States added the “fruit of the poisonous tree” doctrine excluding evidence obtained as the indirect result of an illegal search. And not until 1961 was the exclusionary rule extended to the states in Mapp v. Ohio.
It is important to understand that the exclusionary rule is a judicial construct not a constitutional right. Its purpose is to give teeth to the fourth amendment’s protections. All too often it seems that trials are viewed as a competition and the judge’s job is to provide an even playing field, “May the best lawyer win.” That’s just wrong. A trial should be a search for the truth. Throwing out otherwise useful even critical information makes finding the truth difficult.
That is not to say that the fourth amendment is no longer needed or that we should not be zealous in protecting our fourth amendment rights. The FBI has launched a major attack on the fourth amendment seeking approval for warrantless searches. We need to find a way to protect our fourth amendment rights without throwing out evidence.
I would be very interested in hearing a lively debate on alternatives to the exclusionary rule.
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