Harvard Law

Kasimar argues that the police reaction to the US Supreme Court’s ruling in Mapp v Ohio 367 US 643, (1961) is evidence enough that alternatives to the exclusionary rule are ineffective. (Kamisar, 2003, 119-140) In Mapp v Ohio 367 US 643, (1961) the US Supreme Court ruled that evidence obtained from an illegal search and seizure would not be admitted into evidence in criminal proceedings under the exclusionary rule. (Mapp v Ohio 367 US 643, (1961)) Police Commissioner, Michael Murphy of New York City described the decision as having created “earthquakes and tidal waves.” (Kamisar, 2003, 119-140) He further stated that it had now become necessary to restructure and retrain the department in order to ensure that police investigations does not lead to the exclusion of evidence in criminal proceedings. (Kamisar, 2003, 119-140) Critics have maintained that the imposition or the buttressing of the exclusionary rule has by itself undermined any real chance for the imposition or effectiveness of alternatives to the exclusionary rule.(Kamisar, 2003, 119-140) Kamisar argues that this position is a misrepresentation of realty. The fact is, for many years some states did not have an exclusionary rule and at the same time there were no other alternatives for making the police accountable. (Kamisar, 2003, 119-140) This in and of itself obviate the necessity of the exclusionary rule. In any case, in most instances where police obtain evidence by virtue of an unlawful search and seizure the conduct does not usually rise to a level warranting criminal prosecutions.(Kamisar, 2003, 119-140) In today’s political and social climate where public policies demand a get tough on crime attitude the situation in which plaintiffs can successfully sue police for misconduct is becoming less and less viable. Only in extreme cases will a claimant likely succeed. It is therefore one of the best arguments in favor of sustaining the exclusionary rule. Kasimar also dismisses arguments that the exclusionary rules is used by dangerous criminals to escape prosecution.Relying on empirical research studies conducted by Thomas Davies, Kasimar maintains that the instances in which rapists and murderers successfully invoke the exclusionary rule are rare. (Kamisar, 2003, 119-140) In fact Davies reports that the majority of complaints in respect of illegal searches are lodged in “drugs and weapons possession” cases. (Kamisar, 2003, 119-140) Conclusion Kassimar argues that the more serious the offence the more mindful police are of the exclusionary rule.(Kamisar, 2003, 119-140) The fact is, police are determined to ensure that the dangerous criminal is successfully prosecuted and as such the exclusionary rule acts as a viable deterrent. (Kamisar, 2003, 119-140) On the other hand judges may find a way to get around the exclusionary rule if they are convinced that by adhering to it a dangerous criminal will be freed. (Kamisar, 2003, 119-140) At the same time however, the exclusionary rule will not allow the prosecution of an innocent man against whom the only evidence is that which was obtained by unlawful means.This fact together with the deterrence principle and the fact that there are no other viable alternatives for making law enforcement accountable are the best reasons for maintaining the exclusionary rule.BibliographyCalabresi, Guido. (2003) “The Exclusionary Rule. ” Harvard Law Journal and Public Policy. Vol. 26, 111-118 Kamisar, Yale. (2003) “In Defense of the Exclusionary Rule. ” Harvard Law Journal and Public Policy. Vol. 26, 119-140 Mapp v Ohio 367 US 643, (1961) Worrall,J. L. (2006) Criminal Procedure: From First Contact to Appeal (2nd Edition). Allyn and Bacon Publishing Company