The 'Constable's Blunder' and Other Stories: Narrative Representations of the Police and the Criminal in the Development of the Fourth Amendment Exclusionary Rule
2010 Mich. St. L. Rev. 121 (2010)
58 Pages Posted: 14 Oct 2014
Date Written: October 13, 2014
This article demonstrates the interaction between literary representations of the police officer, the criminal suspect, and their respective relationships with society, and the development of the exclusionary rule as a prophylactic remedy for Fourth Amendment violations. In English and American literature the criminal moved from the role of dangerous outsider he occupied at the Founding, to victim of society during the late nineteenth and early twentieth centuries, to, eventually, sometimes-pop cultural hero during the 1960’s. Meanwhile the literary police officer did not exist until the development of the professional police force in the late nineteenth century; afterwards he was most frequently represented as an incompetent, socially-marginalized blunderer, and eventually as an oppressor of the weak. I argue that these twin evolutions in representation correlate with and give credibility to an exclusionary doctrine, developed in the mid-twentieth century, which depended on the image of the policeman as a threat to, rather than protector of, the interests of the individual citizen, and susceptible to “punishment” through the release of a criminal. Specifically, narrative strategies and imagery appearing in the court opinions applying the exclusionary rule in the mid-twentieth century parallel and interact with the devices used to dramatize police searches in the literature of the time: both contributed to the development of a cultural mythology of the police officer’s interaction with the citizen which has become foundational to Fourth Amendment jurisprudence. The incorporation of a greater range of narratives involving police officer and criminal — beyond the unified monomyth developed during the mid-twentieth century which continues to undergird even the conservative Fourth Amendment opinions of the last two decades — could nuance the debate over the exclusionary doctrine.
Keywords: criminal procedure, Fourth Amendment, law and narrative
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