Police Transparency and the Exclusionary Rule

Abstract

In the old days, police officers bent on misconduct went about their business with bankable allies. Colleagues could be counted on to lie under oath, prosecutors remained willfully blind, and when all else failed, judges and juries were prepared to grant an officer the benefit of doubt. But officers today work in a stricter environment, notable for both its widespread video surveillance (from body worn cameras, smart phones, and closed-circuit televisions) and its democratized channels of distribution (through social media). In this new environment, police misconduct (including perjury to protect a colleague) comes with the sizable risk of exposure and penalty. In addition, there’s a well-documented ratchet effect at work: select video footage of police misconduct inevitably goes “viral” and triggers structural reforms by a host of former allies, including internal affairs branches, city councils, and legislatures.

This raises compelling doctrinal questions for criminal and constitutional law. Take, for instance, the “exclusionary rule.” A hallmark of the U.S. criminal justice system, the exclusionary rule provides generally (subject to various exceptions) that evidence gained in violation of the U.S. Constitution is inadmissible in criminal prosecutions. This long-standing rule will certainly be affected by enhanced transparency in policing. In the immediate future, criminal defendants will benefit most, as video footage (and fewer instances of officer perjury) will make it easier for them to prove constitutional violations. But in the long run, the government should reap the larger gains. The exclusionary rule imposes costs on society, which are justified only insomuch as the threat of suppression deters police misconduct. But what if police are sufficiently deterred by factors besides the fear of suppression? What if the proverbial bad cop is already suspicious, alienated, and excessively cautious? Is the exclusionary rule still justified? Because the marginal deterrent value of exclusion weakens as alternative deterrents gain strength, transparency in policing may well lead the U.S. Supreme Court to further winnow (or perhaps altogether abandon) the rule. This essay describes the rising transparency in policing and explores its ramifications for the exclusionary rule.

Keywords: Fourth Amendment; Exclusionary Rule; Policing