The Due Process Exclusionary Rule

Richard M. Re

University of California, Los Angeles (UCLA) - School of Law

March 30, 2014

Harvard Law Review, 127 Harv L Rev 1885 (2014)

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid-twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.

Number of Pages in PDF File: 82

Keywords: Exclusionary Rule, due process

JEL Classification: K10, K14, K40

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Date posted: February 28, 2014 ; Last revised: September 15, 2014

Suggested Citation

Re, Richard M., The Due Process Exclusionary Rule (March 30, 2014). Harvard Law Review, 127 Harv L Rev 1885 (2014). Available at SSRN: https://ssrn.com/abstract=2401979

Contact Information

Richard M. Re (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
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