Defending the Exclusionary Rule

Guido Calabresi argues that there are basically two sides to the exclusionary rule debate. They are the liberals’ side who argue in favour of the rule as a means of making law enforcement accountable, and the conservatives’ side who maintain that the rule is unnecessary and is only a tool which provides a loophole through which criminals may escape justice. (Calabresi, 2003, 111-118) However, the dynamics of the judicial discretion to exclude or to admit improperly obtained evidence goes beyond a systematic characterization of its uses.

In determining whether or not to permit the evidence improperly obtained the judge is required to look at the police officer’s conduct and determine whether or not that search or seizure was reasonable. If not, then invariably the evidence collected as a result of the unreasonable search and/or seizure is typically excluded from the trial. (Calabresi, 2003, 111-118) In ascertaining whether or not the search/seizure was reasonable the presiding judge is required to measure a number of variables.

For instance he must weigh the individual’s constitutionally protected right to privacy against the police officer’s duty to detect and prosecute criminal conduct for the protection of the public. (Calabresi, 2003, 111-118) Be that as it may, Calabresi maintains that judges often act in a manner that he describes as a “hydraulic effect. ” (Calabresi, 2003, 111-118) As Calabresi explains, a judge who is faced with a dangerous criminal who invokes his fourth amendment “or other constitutional” protection claiming that the evidence was improperly obtained will generally err on the side of the police in cases that are close.

(Calabresi, 2003, 111-118) As a result this ruling becomes a precedent for the next case. In any case, the judges are constantly broadening the interpretation of what is reasonable to such an extent that it is next to impossible to successfully challenge improperly obtained evidence under the exclusionary rule. (Calabresi, 2003, 111-118) The question then remains; what then is the value of the exclusionary rule, if it is ineffective? To begin with, it is not entirely ineffective as courts will not permit the improperly obtained evidence if the evidence is the only evidence against the accused person.

Moreover, as Calabresi explains the exclusionary rule is effective for the purpose of controlling police misconduct by providing an incentive for them to investigate crimes with a modicum of regard for the rights of the individuals that they suspect of crimes. (Calabresi, 2003, 111-118) In accepting and recognizing that judges will not permit the exclusionary rule to be used to allow a dangerous criminal to escape conviction on a mere technicality but will allow it to be used in an appropriate case, the argument that the rule is useless falls apart.

The argument fails because the manner in which the judges uphold the exclusionary rule ensures that dangerous criminals will not be permitted to abuse the rule and that police officers will not be encouraged to abuse the constitutional rights of individuals. The mere fact that an entire case can fall apart if the improperly obtained evidence is incentive enough for police officers to conduct orthodox criminal investigations. Calabresi takes the position that the exclusionary rule is the most effective means by which to encourage police to conduct themselves in a manner consistent with the Constitution.

The alternatives do not measure up. For instance should disciplinary action by virtue of tort complaints be the plaintiff’s only recourse, police may be left unaccountable. In tort trials, jurors usually have to identify with a plaintiff in order to award any appreciable level of damages. It is very unlikely that a criminal plaintiff would invoke the sympathies of a jury in a tort trial with the result that the police officer accused of offending the plaintiff’s right to privacy or assaulting the plaintiff will be vindicated.

(Calabresi, 2003, 111-118) Another alternative proposed but rejected by Calabresi is the imposition of light sentences in respect of criminals against whom improperly obtained evidence is admitted. As Calabresi submits this would not be an effective solution since, short sentences are general given to offenders who have committed minimal offences. Allowing a dangerous or serious criminal to suffer a light sentence would go against the principles of justice and equity. (Calabresi, 2003, 111-118)