The Exclusionary Rule And Evaluation Of Its Development

这篇paper介绍了证据排除法的基本原理和其演变过程。我们不得不承认,这条规则将保护我们免受入侵公共权力和注意带来的成本同时威慑的证据。至少,证据排除法则的最初目标是培训滥用权力和保护正当程序权利。不可否认真理的发现是非常重要的,但程序正义的实现可能真的占了社会的发展。

I. The Exclusionary Rule and Its Evolution

A. The Rationale of the Exclusionary Rule

The exclusionary rule is typical in America and it constitutes the core of the criminal procedure framework. This rule suppresses evidence that is obtained in the way that violates the defendant’s constitutional rights . It relates closely to the Fourth Amendment and was mentioned together with the Fifth, Sixth and Fourteenth Amendments as well. When the courts apply this rule, they have to take a number of factors into consideration and balance the benefits gained by suppression and the costs of freeing a potential criminal.

This rule has a history of a century and can be dated back to 1914, when the Supreme Court held that the evidence gained in violation of the Fourth Amendment could not be used to accuse the defendant, but only in a federal criminal trial. At that time, however, this rule is not applicable to the states. It was not until 1961 did the Supreme Court make it a rule that has to apply to the states. 

The Fifth and Fourteenth Amendments mentioned above embody the theory of due process of law. We may always link illegally acquire of evidence to due process since these clauses require the government to adhere to law when it deprives people of liberty. Albert W. Alschuler, however, contends that the framer of the Amendments themselves did not draw this conclusion. Nevertheless，we have to admit that exclusionary rule is closely related to the rationale of due process nowadays. The rules are set to offer procedural protection to the accused party when the evidence is illegally acquired and this is the requirement of due process, which distinguishes the modern criminal procedure from the original one.  

B. Exclusion of “Fruit of the Poisonous Tree”

  The exclusionary rule not only applies to suppress the evidence that violates the Constitution directly, but to the evidence indirectly obtained from the violation. This is called “fruit of the poisonous tree” doctrine. Since this doctrine expands the evidence that might be seen as illegal. Generally, courts have to weigh some factors and the followings are to be balanced before excluding the “fruit of the poisonous tree”.

  Firstly, how long did it take between the initial illegality and the acquisition of the “fruit”; second, the occurrence of intervening events; third, the bad effects of the initial illegality. As a result of such consideration, more evidence are reserved instead of being excluded randomly.

C. The Limitations on the Exclusionary Rules

  When the legal system lays emphasis on the protection of the defendants’ constitutional right, it also employs a set of limitations on the exclusionary rule. As mentioned above, there exists tension between the costs of lowering the efficiency of law enforcement and the gain of protection of human rights. To resolve such clash, the courts employs a “cost-benefit” doctrine and develops some limitations of exclusion through case law.

  Firstly, this rule does not applies to some proceedings, such as civil trials, grand jury and so on, but applies to criminal trials only. Take civil proceeding as an example, different parties disagree on the costs and benefits of applying the rule, particularly on the matter of deterrence. Comparing with criminal trial, it is more difficult to balance the interests in other kinds of proceedings. This limitation narrows the realms that the exclusionary rule can apply.

  Secondly, the rule applies to the actual victims of the constitutional violation. Another party is not qualified to claim the infringement of the actual victim’s right. It means if the police find evidence that can be use to accuse B in A’s house in an unlawful search, B cannot allege that the evidence is obtained unlawfully and fall in the range of exclusion. In such circumstances, the definition of victim is rather important and the definition did change over decades and it finally narrowed down to an exception of privacy in the Katz v. United States, 389 U.S. 347(1967).

  Another exception is the good faith exception, which was established in in a case. The decision held that, if the police officer carried out the action in “good faith”, believing the search or seizure warrant signed by an independent party, then the exclusionary rule should not apply. In this situation, the police officer is oblige to carry out his tasks rather than risking the loss of evidence. Even though the police officer is virtually violating the Forth Amendment, the good faith deterred the evidence from exclusion. This is also the weighing between cost and benefit, thus reserving more relevant evidence, which accords with the principle of the Federal Rules of Evidence and facilitates the finding of the truth.

  What’s more, the impeachment exception is also available to limit the exclusion. Evidence that is to be originally excluded under exclusionary rule is admissible when used solely to impeach the defendant’s testimony at criminal trial. This limitation is based on such consideration: the risks of permitting the defendant to perjure may overweight the risk of offending his rights.

  The last one to analyze is the harmless error, meaning if a conviction would result anyway using legal manner, the evidence illegally obtained will not be excluded. Under such circumstances, however, the police officer should prove that they are acted in good faith. This is another way to admit more evidence in trials, so as to punish the crimes and protect the social order better.

II.The Evaluation of the Exclusionary Rule in Practice

  The occurrence of the exclusionary rule is to prevent unreasonable and unauthorized search and seizure and it develops over years, which is embodied in the Federal Rules of Evidence and case law. More and more rules are set to limit the immoderate expansion of the exclusion. Debates arise and many scholar suspect whether the rule is actually working in preventing illegal search and other kinds of activities, or just the waste of judicial resources.

  Dallin H. Osks carried out a research during 1969 and 1970, focusing on the effect of the exclusionary rule on criminal trials, using the measure of empirical analysis, arriving at the conclusion that the rule can be abolished and replacing it with tort remedy over the police officer so as to reserve more evidence in trial.Some scholar employed the empirical analysis and argued that the cost of executing this rule have been over-exaggerated.

  Despite the discussion of the scholar over the years, the Supreme Court held that when the police officers are executing their tasks with a search warrant, there is no need to knock and announce their presence in Hudson v. Michigan, thus making the deterrence of evidence of no use. Though this can only be carried out when emergencies occur, it did limit the use of exclusionary rule a step further. The influence of this case may be further tested in the future, but it showed the court’s inclination in denying the exclusionary rule in normal conditions and the trend that the exclusionary rule will not be used in any circumstances.

  We have to admit that the this rule would protect us from the intrusion of public powers and be mindful of the costs brought by the deterrence of evidence in the meantime. At least, the original goal of the exclusionary rule is to retrain the abuse of powers and protect the rights to due process. It is undeniable that the finding of truth is of great importance, but the realization of procedural justice may really account for the development of society.

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