Criminal ProcedureChapter 10CONSTITUTIONAL VIOLATIONS:EXCLUSIONARY RULE AND OTHER PROCESS REMEDIES
Nature and Kinds of Remedies
Exclusion of illegally obtained evidence
Criminal prosecution of officials
Private lawsuits against officers, criminal justice agencies, and federal, state and local governments.
Internal departmental discipline
These remedies are not mutually exclusive

The Exclusionary Rule
“The culprit is to go free because the constable blundered.”
Judge Benjamin Cardozo.

The Exclusionary Rule
Law enforcement methods which trigger the exclusionary rule:
Unreasonable search and seizure
Coerced confessions
Identification procedures that violate due process of law

Exclusionary Rule - History
Not in Constitution
Madison feared including rule in Constitution would upset checks and balances
Left to courts to devise remedies
Until 20th century, remedy was civil suit
Exclusionary Rule
Weeks v. U.S. (1914)
First case where illegally seized evidence suppressed
Silverthorne Lumber Co. v. U.S. (1920)
“fruit of the poisonous tree.”
Exclusionary Rule
Agnello v. U.S. (1925)
expanded the exclusionary rule to cover contraband as well as legal property.
Wolf v. Colorado, (1949)
Unreasonable searches and seizures by the states enforceable by the due process clause of the 14th Amendment. However, exclusionary rule was not.
Exclusionary Rule
Mapp v. Ohio, 367 U.S. 643 (1961)
Exclusionary Rule
Constitutional justification
Exclusionary rule itself is a constitutional right
Right is to be free from unreasonable searches
A right without remedy is no right at all. Like “one hand clapping”

Exclusionary Rule
Judicial integrity justification
Honor and integrity of the courts forbids them from participating in unconstitutional conduct.
Justice Holmes- dissent in Olmstead v. U.S. said that it is “less evil that some criminals should escape than that the government should play an ignoble part.”

Exclusionary Rule
Deterrence justification
Excluding evidence because it was illegally seized sends a strong message to police.
The exclusionary rule is a “prophylactic (protective device) against unreasonable searches and seizures.”
Justice Brandeis in his dissent in Olmstead, “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” The law cannot say that “the end justifies the means.”

Exclusionary Rule-Exceptions
Collateral use exception
Cross-examination exception
Attenuation exception
Independent source exception
Inevitable discovery exception
Good faith exception
Collateral Use Exception
allows use of illegally seized evidence when it is not offered in the trial
May be used in preliminary hearings
Bail
Probable cause hearings
Grand jury hearings


Cross-Examination
If D testifies, the evidence may be used to impeach his testimony in cross-examination
Walder v. U.S., D testified that he had never possessed heroin. Court allowed prosecutor to introduce the seized heroin to show D was lying.

Attenuation
Illegally seized evidence may be admitted if the connection between the bad acts of police is weakened enough.
Wong Sun v. U.S. (1963)

Independent Source
If officers conduct an illegal search or seizure, and later seize evidence which is not the result of the initial illegal actions, the court will allow the evidence.
The evidence must not be product of illegal conduct of officers.
It comes from an independent source.

Inevitable Discovery
Nix v. Williams (1984)

Good Faith Exception
U.S. v. Leon, 468 U.S. 897 (1984)
Arizona v. Evans, 514 U.S. 1 (1995)
Exclusionary Rule
Social Costs and Deterrent Effects
Supreme Court held social cost of exclusionary rule outweighs deterrent effect of rule.
Scientific evidence shows otherwise.

Exclusionary Rule
ABA survey of 800 police administrators, prosecutors and judges
exclusionary rule does not impede police actions
exclusionary rule has improved police professionalism
rule provides significant benefit to society at minimal cost
example that Americans prefer freedom to police efficiency

Other Remedies
Dismissal
Court has power to dismiss cases.
U.S. Supreme Court has not ruled on this

Defense of Entrapment
Defense to crime based on law enforcement officer’s illegal inducement to commit crime,

Entrapment
Government agent gets person to commit crime they would not have committed without government encouragement.

Law balances person’s criminal predisposition against police practices

Entrapment
Entrapment as defense arose as a result of consensual crimes: drugs, alcohol, gambling, prostitution.
Difficult crimes to detect
No victim
Those involved not report crime
Entrapment
British Prime Minister William Gladstone view on entrapment:
Government should make it easy to do right and hard to do wrong
Lord’s Prayer:
“Lead us not unto temptation, but deliver us from evil.”

Entrapment
Encouragement 
Active Encouragement

Entrapment
Entrapment
Affirmative defense
D has burden of production of proof that it occurred
Burden then shifts to state to prove D not entrapped
Jury determines whether or D was entrapped

Entrapment
Subjective and Objective Tests of Entrapment
Majority of jurisdictions and federal courts follow subjective test
Focuses on predisposition of D to commit offense

Entrapment
D entitled to defense of entrapment if:
D had no desire to commit crime before government action
Government encouragement caused D to commit crime

Entrapment
Where did criminal intent originate?
If D was predisposed to commit the crime, and government only provided the opportunity, there is no entrapment.

Entrapment
Government can prove predisposition by D’s:
convictions for similar offense
willingness to commit similar offenses
expertise in carrying out the crime
readiness to commit crime

Entrapment
Jacobson v. U.S., 503 U.S. 540 (1992)
Entrapment
Objective test of entrapment (minority)
Relies on government actions – not predisposition of defendant
Test: If government actions would induce an ordinary law-abiding citizen to engage in the conduct, then it is entrapment.
Purpose is to deter “unsavory police methods”

Due Process and Entrapment
Chief Justice Rehnquist says that D should not be freed due to entrapment, but should have other remedy for police misconduct.
Majority of court rejects this view and allows entrapment as a defense due to police overreaching.
Plurality of court says that entrapment defense will not free a predisposed D regardless of government overreaching.
Due process issue raised when alleged that police misconduct is so great as to violate fundamental fairness and shock the conscience.

Reversible Error
Types of error - reversible error and harmless error
Harmless error – judge allows evidence that should have been excluded, but appellate court finds that there was enough evidence for conviction even if evidence had been excluded.
Reversible error - improperly admitted evidence had impact on outcome of case. Without this evidence, D may not have been convicted.

Problem
Should we continue to use the exclusionary rule? Address the Constitutional and public policy issues in your discussion. Include a discussion of applicable case law.

Legal

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