Serious criminals

Calabresi, major difficulties with the exclusionary rule is that it provides an opportunity for serious criminals to escape conviction and at the same time it does not function to deter police misconduct. He therefore submits that awarding a criminal points at the trial could stand as an alternative to the exclusionary rule. (Calabresi, 2003, 111-118) Convicts generally strive to acquire points as a means of reducing the sentence imposed and by awarding the prisoner points at the sentencing stage, Calabresi is of the opinion that such a system would encourage criminals to disclose incidents of police misconduct in the collection of evidence.

It would likewise act as a deterrence against police misconduct. (Calabresi, 2003, 111-118) The difficulty with Calabresi’s recommendation is that it is no different from the suggestion that criminals who are the subject of improperly obtained evidence should receive lighter sentences as an alternative to the exclusionary rule. Although the points systems does not impact upon the sentence imposed, it impacts upon the sentence itself with the result that it is a lighter sentence.

The general position is that awarding lighter sentences to serious criminals does not bode well with public policies. (Kamisar, 2003, 119-140) Yale Kamisar is of the opinion that alternative remedies for police accountability for improperly obtained evidence are not feasible. (Kamisar, 2003, 119-140) The fact is, criminals have credibility issues and will have substantial difficulties establishing a case against a law enforcement official for the purpose of pursuing a claim in tort, or establishing criminal prosecution or invoking the police internal disciplinary proceedings.

(Kamisar, 2003, 119-140) Moreover, if police officers perjure themselves to manipulate the judge into admitting improperly obtained evidence he is certain to lie in order to save his job in the course of departmental disciplinary proceedings. (Kamisar, 2003, 119-140) These realities leave the criminal suspect with only one viable remedy and that is the operation or the mere threat of the operation of the exclusionary rule. As tenuous as it might be for the dangerous criminal it is the most effective method for safeguarding the constitutional rights of the individual by deterring abusive police conduct.