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In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, the exclusionary rule is a legal rule, based on
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
, that prevents
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
collected or analyzed in violation of the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
's
constitutional right A constitutional right can be a prerogative or a duty, a power or a restraint of power, recognized and established by a sovereign state or union of states. Constitutional rights may be expressly stipulated in a national constitution, or they may ...
s from being used in a
court of law A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordan ...
. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law."Re, Richard
"The Due Process Exclusionary Rule: A new textual foundation for a rule in crisis"
''
Harvard Law Review The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of 143 ...
'', Vol. 127, p. 1885 (2014). ''See also'
"Regarding Re’s Revisionism: Notes on The Due Process Exclusionary Rule"
''Harvard Law Review'', Vol. 127, p. 302 (2014).
The exclusionary rule is grounded in the Fourth Amendment in the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
, and it is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide a remedy and disincentive for criminal prosecution from
prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
s and
police The police are a Law enforcement organization, constituted body of Law enforcement officer, persons empowered by a State (polity), state, with the aim to law enforcement, enforce the law, to ensure the safety, health and possessions of citize ...
who illegally gather evidence in violation of the Fifth Amendment and its protection against
self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incriminati ...
. The exclusionary rule also protects against violations of the Sixth Amendment, which guarantees the right to counsel. Most states also have their own exclusionary remedies for illegally obtained evidence under their state constitutions and/or statutes, some of which predate the federal constitutional guarantees against unlawful searches and seizures and compelled self-incrimination. This rule is occasionally referred to as a
legal technicality The term legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in the law; it has no exact meaning, nor does it have a legal definition. It implies that strict adherence to the ...
because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from
double jeopardy In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
. In strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, ''all'' evidence whose recovery stemmed from the illegal action—this evidence is known as "
fruit of the poisonous tree Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") ...
"—can be thrown out from a jury (or be grounds for a
mistrial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, ...
if too much information has been irrevocably revealed). The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors.


History of the rule

Up until the independence of the United States, the courts of England excluded self-incriminating evidence that was provided as a result of official compulsion, regardless of its reliability.Davies, Thomas
“Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez V. Martinez”
''Tennessee Law Review'', Volume 70, pages 987–1045 (2003).
In 1769, Lord Chief Justice Mansfield explained as follows: Lord Mansfield also explained that "If any evidence or confession has been extorted from her, it will be of no prejudice to her on the trial." Additionally, a defendant could sue to suppress and regain possession of at least some types of illegally seized evidence, in a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
action for
replevin Replevin () or claim and delivery (sometimes called revendication) is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses. Etymology The word "replev ...
.''Warden v. Hayden''
387 U.S. 294
(1967).
However, in the 1783 case of ''Ceglinski v. Orr'', the English courts declined to suppress evidence obtained by illegal coercion. In the ''Warickshall'' case, evidence was gathered as a result of an involuntary confession, and the court held that the evidence (but not the confession itself) could be admitted. It is questionable whether the ''Warickshall'' rule became known in the United States before 1789 (when the U.S. Bill of Rights was written), and whether it applied to confessions obtained by both governmental and private parties. In any event, no decision by the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
has ever endorsed the ''Warickshall'' rule as a constitutional matter. Generally speaking,
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
before 1789 did not provide as strong an exclusionary rule as the one that later developed under the
Fourth Amendment to the United States Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...
, regarding unlawful searches and seizures. The Fourth Amendment, after all, was partly a reaction against English law including the
general warrant A writ of assistance is a written order (a writ) issued by a court instructing a law enforcement official, such as a sheriff or a tax collector, to perform a certain task. Historically, several types of writs have been called "writs of assistance ...
and the
writs of assistance In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoena ...
. In the 1886 case of '' Boyd v. United States'', the U.S. Supreme Court addressed compulsory production of business papers, and the Court excluded those papers based on a combination of the Fourth and Fifth Amendments. ''Boyd'' was closely limited to its facts, and several years later the Court stated that the Fourth Amendment does not extend to "excluding testimony" about wrongful searches and seizures. In 1897, the U.S. Supreme Court held, in ''Bram v. United States'', that involuntary confessions are inadmissible as evidence. The Court in ''Bram'' did not announce a strong version of the exclusionary rule that would apply uniformly to exclude all evidence gathered in violation of the Bill of Rights, but instead announced a weak version that excluded only self-incriminating testimony that was compelled in violation of the Fifth Amendment. The distinction between testimonial versus other self-incriminating evidence is a matter of continuing debate.''United States v. Hubbell''
530 U.S. 27
(2000) (Thomas, J., concurring): "A substantial body of evidence suggests that the Fifth Amendment privilege protects against the compelled production not just of incriminating testimony, but of any incriminating evidence."
Before a strong version of the exclusionary rule was addressed and adopted by the federal courts, it had already been adopted by at least one state court, namely the
Iowa Supreme Court The Iowa Supreme Court is the highest court in the U.S. state of Iowa. The Court is composed of a Chief Justice and six Associate Justices. The Court holds its regular sessions in Des Moines in the Iowa Judicial Branch Building located at 1111 ...
, as that court would later describe: In 1914, the U.S. Supreme Court announced a strong version of the exclusionary rule, in the case of ''
Weeks v. United States ''Weeks v. United States'', 232 U.S. 383 (1914), was a United States Supreme Court case in which the Court unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment to the U.S ...
'', under the Fourth Amendment prohibiting unreasonable searches and seizures. This decision, however, created the rule only on the federal level. The "''Weeks'' rule," which made an exception for cases at the state level, was adopted by numerous states at a time during
prohibition Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcoholi ...
. In adopting the rule, actions by states often reflected attitudes towards prohibition, which was enacted by adoption of the Eighteenth Amendment and was enforced through the
Volstead Act The National Prohibition Act, known informally as the Volstead Act, was an act of the 66th United States Congress, designed to carry out the intent of the 18th Amendment (ratified January 1919), which established the prohibition of alcoholic d ...
. Concerns about privacy violations also extended to other instances where criminal sanctions were permitted for "victimless" crime, such as illegal gambling or narcotics violations. In 1920, the U.S. Supreme Court adopted the "fruit of the poisonous tree" doctrine in the case of '' Silverthorne Lumber Co. v. United States''. The Court stated that allowing evidence gathered as an indirect result of an unconstitutional search and seizure "reduces the Fourth Amendment to a form of words". '' Wolf v. Colorado'' ruled that states were not required to adopt the exclusionary rule. Despite the ruling, some states adopted the exclusionary rule. In 1955, the
Supreme Court of California The Supreme Court of California is the Supreme court, highest and final court of appeals in the judiciary of California, courts of the U.S. state of California. It is headquartered in San Francisco at the Earl Warren Building, but it regularly h ...
ruled in ''People v. Cahan'' that the exclusionary rule applied for cases in the state of California. By 1960, 22 states had adopted the rule without substantial qualifications: California, Delaware, Florida, Idaho, Illinois, Indiana, Kentucky, Mississippi, Missouri, Montana, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, Washington, Texas, West Virginia, Wisconsin, Wyoming. Michigan also had an exclusionary rule, but with limitations for some narcotics and firearms evidence. In Alabama, Maryland, and South Dakota, the exclusionary rule applied in some situations. It was not until '' Mapp v. Ohio'' in 1961 that the exclusionary rule was also held to be binding on the states through the Fourteenth Amendment, which guarantees
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
. Up until ''Mapp'', the exclusionary rule had been rejected by most states. In 2016, '' Utah v. Strieff'' dealt with the exclusionary rule and outstanding warrants and was viewed to be generally favorable towards police.


Scope and limitations of the rule


Scope

The exclusionary rule does not apply in a civil case, in a
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a p ...
proceeding, or in a
parole Parole (also known as provisional release or supervised release) is a form of early release of a prison inmate where the prisoner agrees to abide by certain behavioral conditions, including checking-in with their designated parole officers, or ...
revocation hearing. The law in force at the time of the police action, not the time of the attempt to introduce the evidence, controls whether the action is illegal for exclusionary rule purposes.


Evidence obtained indirectly from illegal activity

Under the “
fruit of the poisonous tree Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") ...
” doctrine, evidence obtained as an indirect result of illegal state action is also inadmissible. For example, if a defendant is arrested illegally, the government may not use fingerprints taken while the defendant was in custody as evidence.Hayes v. Fla., 470 U.S. 811 (1985) Because police would not have obtained the fingerprints without the illegal arrest, the prints are “fruit of the poisonous tree.” Other examples of evidence inadmissible under this doctrine include: * Evidence seized during a search, where the probable cause for the search was illegally obtained evidence * A confession made by the defendant, prompted by the admission of illegally obtained evidence against him * Evidence derived from information gained in illegal wiretaps However, the "fruit of the poisonous tree" doctrine does not apply to interrogations made without a ''Miranda'' warning.Chemerinsky & Levenson (2018). ''Criminal Procedure Investigation''. New York: Wolters Kluwer. p. 620. Although a confession obtained in violation of '' Miranda'' is inadmissible, evidence obtained based on information in the confession is admissible. For example, if police learn the identity of a witness through a confession that violates '' Miranda'', the government may still use the witness's testimony at trial.


Limitations

Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment. In '' Hudson v. Michigan'',
Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...
wrote for the U.S. Supreme Court: Limitations on the exclusionary rule have included the following: *Private search doctrine: Evidence unlawfully obtained from the defendant by a private person is admissible. The exclusionary rule is designed to protect privacy rights, with the Fourth Amendment applying specifically to government officials. *Standing requirement: Evidence can only be suppressed if the illegal search violated the person's own (the person making the court motion) constitutional rights. The exclusionary rule does not apply to privacy rights of a third party. However, there is a narrow exception to this standing requirement, the ''
jus tertii ''Jus tertii'' ( English: third party rights) is the legal classification for an argument made by a third party (as opposed to the legal title holder) which attempts to justify entitlement to possessory rights based on the showing of legal title ...
'' standing exception. *Cross-examination: Illegally obtained evidence may be admissible to attack the defendant’s credibility on cross-examination, at least where necessary to prevent gamesmanship.Walder v. United States, 347 U.S. 62 (1954) For example, where the defendant affirmatively chooses to make a broad statement denying any narcotics activity, he may not use the exclusionary rule as a shield against attacks on his credibility. However, the government also may not attempt to “smuggle in” excluded evidence on cross-examination by asking broad questions. *Inevitable discovery doctrine: '' Nix v. Williams'' held that if the evidence obtained in the unlawful search would almost definitely have been found eventually even without said search, the evidence may be brought forth in court. *Good faith exception: If police officers acting in good faith (''bona fides'') rely upon a defective search warrant, then the evidence acquired may still be used under the good-faith exception. *Independent Source Doctrine: If police obtain evidence illegally, but also obtain the same evidence through an independent, legal means, the evidence is admissible. *Knock-and-Announce Exception: Evidence that police obtain in violation of the requirement to knock and announce themselves before searching a home is admissible. *Attenuation : If the passage of time or intervening events break the causal relationship between the illegal activity and the evidence, the evidence may still be admissible. Some examples include: **If a defendant was illegally arrested, but returns to the police station voluntarily several days later and makes a statement, the statement may be admissible. ** If a defendant was illegally stopped, but a valid outstanding arrest warrant is later discovered, evidence obtained during the stop may be admissible. * Formerly, the Silver Platter doctrine allowed state officials that obtained evidence illegally to turn over evidence to federal officials, and have that evidence be admitted into trial. However, the doctrine was ruled unconstitutional in ''
Elkins v. United States ''Elkins v. United States'', 364 U.S. 206 (1960), was a US Supreme Court decision that held the "silver platter doctrine", which allowed federal prosecutors to use evidence illegally gathered by state police, to be a violation of the Fourth Amen ...
'' in 1960. The exclusionary rule is not applicable to non-U.S. nationals residing outside of U.S. borders. In '' United States v. Alvarez-Machain'', the U.S. Supreme Court decided that property owned by aliens in a foreign country is admissible in court. Certain persons in the U.S. receive limited protections, such as prisoners, probationers, parolees, and persons crossing U.S. borders. Corporations, by virtue of being, also have limited rights under the Fourth Amendment (see
corporate personhood Corporate personhood or juridical personality is the legal notion that a juridical person such as a corporation, separately from its associated human beings (like owners, managers, or employees), has at least some of the legal rights and respons ...
). In the case of '' Florida v. Jimeno'', it was found that the evidence found to convict Jimeno, although at first was not admissible, later was found to in fact be admissible since it passed the test of reasonable standards. The defendant consented to a search of his car, and when the officer searched a package and found drugs, it was not said to be in violation because a reasonable person would expect illegal narcotics to be kept in a package or container.


Parallel construction

The Special Operations Division of the U.S.
Drug Enforcement Administration The Drug Enforcement Administration (DEA; ) is a United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within the U.S. It is the lead agency for domestic en ...
advises DEA agents to follow a process of '' parallel construction'' when launching criminal investigations of Americans based on SOD tips that may be based on warrantless surveillance.


Criticism and defense

The exclusionary rule as it has developed in the United States has been long criticized. Judge Benjamin Cardozo, Chief Judge of the
New York Court of Appeals The New York Court of Appeals is the highest court in the Unified Court System of the State of New York. The Court of Appeals consists of seven judges: the Chief Judge and six Associate Judges who are appointed by the Governor and confirmed by ...
between 1927 and 1932, stated that under the rule, "The criminal is to go free because the constable has blundered." The judge noted that many states had rejected the rule, but suggested that the adoption by the federal courts would affect the practice in the sovereign states. In the 1970s, Dallin H. Oaks, Malcolm Wilkey, and others called for the exclusionary rule to be replaced with a comprehensive judicial remedy against all illegal arrests and searches and seizures (e.g., tort remedy). By the 1980s, the exclusionary rule remained controversial and was strongly opposed by President
Ronald Reagan Ronald Wilson Reagan ( ; February 6, 1911June 5, 2004) was an American politician, actor, and union leader who served as the 40th president of the United States from 1981 to 1989. He also served as the 33rd governor of California from 1967 ...
, but some opponents began seeking to have the rule modified, rather than abolished altogether. The case, ''
Illinois v. Gates ''Illinois v. Gates'', 462 U.S. 213 (1983), is a Fourth Amendment case. ''Gates'' overruled ''Aguilar v. Texas'' and '' Spinelli v. United States'', thereby replacing the Aguilar–Spinelli test for probable cause with the "totality of the circum ...
'', before the Supreme Court brought the exclusionary rule for reconsideration. The Supreme Court also considered allowing exceptions for errors made by police in
good faith In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
. The Reagan administration also asked
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
to ease the rule. It has been proposed that the exclusionary rule be replaced with
restitution The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court ...
to victims of police misconduct. A major criticism of the Fourth Amendment exclusionary rule is that it allegedly defies the original intent of the Constitution. Yale Law Professor
Akhil Amar Akhil Reed Amar (born September 6, 1958) is an American legal scholar known for his expertise in constitutional law and criminal procedure. He holds the position of Sterling Professor of Law and Political Science at Yale University, and is an ad ...
, for example, has argued that "nothing in the text, history, or structure of the Fourth Amendment" supports the rule. Critics like Amar, Oaks and Wilkey point to the fact that the text of the Fourth Amendment does not indicate that illegally seized evidence must be excluded. Some legal historians argue that the Constitution's Framers intended only that victims of unreasonable searches or seizures could file civil lawsuits. In 2009, Roger Roots presented evidence that the idea of exclusion can be found in the earliest set of law books published in American history. In 2014, Roots elaborated that certain eighteenth-century British law books and pamphlets which discuss the exclusion of illegally seized evidence circulated widely in the American colonies and were owned by numerous prominent Framing-era lawyers and statesmen.Roger Roots, "The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence", '' Nevada Law Journal'', Vol. 15, pp. 42-76 (2014) http://works.bepress.com/cgi/viewcontent.cgi?article=1009&context=roger_roots Also in 2014, Professor Richard Re proposed that the Due Process Clause provides an ample basis for the Exclusionary Rule.


See also

* Consent search * Parallel construction * ''
Herring v. United States ''Herring v. United States'', 555 U.S. 135 (2009), was a case decided by the Supreme Court of the United States on January 14, 2009. The court decided that the good-faith exception to the exclusionary rule applies when a police officer makes an a ...
'' (2009 Supreme Court decision about the good-faith exception to the exclusionary rule) * Sugar bowl (legal maxim) *'' Bunning v Cross'', an Australian case for which the ruling may be formulated as an exclusionary rule * Section 24(2) of the ''Canadian Charter of Rights and Freedoms'', a constitutional provision explicitly excluding unconstitutionally obtained evidence if its admission would bring the administration of justice into disrepute


References


Further reading

*Berg, B.L. ''Criminal Investigation'' (McGraw-Hill, 2008) {{Authority control Evidence law Privacy law in the United States Searches and seizures Legal doctrines and principles