Fixing the Constable's Blunder: Can One Trial Judge in One County in One State Nudge a Nation Beyond the Exclusionary Rule?

Abstract

Instead of offering an academic alternative to the exclusionary rule, this article provides a guideline for moving past the rule. The exclusionary rule was chiefly created to deter violation of Fourth Amendment rights, but has been criticized for what many consider to be its draconian and odious remedy. The article argues that movement away from this rule is justified and that the change should be effectuated in state courts. First, the article examines the genesis of and policy behind the exclusionary rule, the major limitations and exceptions that have been developed to avoid the rule's distasteful effects, and the studies and data that have been accumulated concerning the rule's success, or lack thereof, in reaching its policy goals. This is followed by a discussion of the propriety of using the state courts as laboratories for change and experimentation within the framework of the federal system. Following that, the article offers a blueprint for one trial judge in one county in one state to institute the change. This blueprint is presented in the form of a hypothetical criminal case in which the prosecutor concedes that an illegal search and seizure occurred, and that the fruits of the crime were seized in violation of the Fourth Amendment, but argues that the evidence should be admitted anyway, not only because it is probative, but also because excluding it would not further the deterrence goal of the exclusionary rule. Two exchanges in this hypothetical criminal proceeding are offered. The first is between the lawyers and the trial judge during a pre-trial suppression hearing, while the second takes place between the lawyers and a three-judge appellate panel after the trial court admitted the evidence and the defense appealled. Following this dual-exchange blueprint, the article concludes with the argument that the movement beyond the exclusionary rule is not only justified but also possible, and that state courts are the proper venue in which to make the change.

Keywords: criminal law, exclusionary rule, exclude, evidence, Fourth Amendment, search, illegal search, search and seizure, suppress, suppression hearing