The Due Process Exclusionary Rule

By Re, Richard M. | Harvard Law Review, May 2014 | Go to article overview

The Due Process Exclusionary Rule


Re, Richard M., Harvard Law Review


III. MAKING SENSE OF EXCLUSIONARY DOCTRINE

The due process exclusionary rule draws added normative support from its ability to explain and justify many core features of existing doctrine. Because the law is an interpretive practice, legal theories are on balance more compelling when they maximally fit and justify the law as it is. (225) That interpretive principle cuts in favor of the due process exclusionary rule, since many basic features of current jurisprudence suddenly make sense when deterrence-based arguments are set aside in favor of a focus on due process. Further, many apparently ad hoc limits on the exclusionary rule likewise appear intelligible when understood as efforts to mark the boundaries of due process. Below, section A explores the explanatory power of due process by discussing six basic features of the right to exclusion of evidence. Section B then discusses six limits on due process and their implications for the exclusionary rule.

A. Basic Explanatory Power

The Court has tended to enforce the Fourth Amendment on the often explicit assumption that it constitutes a source of "process" for the acquisition of evidence. (226) That approach has allowed the Court to treat the Fourth Amendment just like any number of other procedural rules for the acquisition of evidence, such as the Self-Incrimination and Confrontation Clauses. (227) Because the Court has generally followed that intuitive approach, the due process exclusionary rule provides a compelling explanation for basic features of current doctrine. For over fifty years the Fourth Amendment exclusionary rule has consistently exhibited the six traits discussed below--each of which is a natural reflection of due process.

1. Personal.--Current doctrine holds that only people who have personally suffered a Fourth Amendment violation can obtain suppression based on that violation. (228) This rule has come in for criticism, and understandably so. (229) If the exclusionary rule were truly meant to deter, then it should apply (at a minimum) whenever evidence directly results from an egregiously unconstitutional search. (230) Imagine for instance that police searched the cell phones of everyone exiting a concert in the hope of finding photos of third parties using illegal drugs. (231) Isn't it obvious that suppression in that situation would deter similar dragnets? The same conclusion follows from principles of restoration, integrity, or judicial review. (232) Under any of those approaches, the government should not gain from, and the courts should not bless, unconstitutional conduct. Yet they do. (233)

The exclusionary rule's personal character suddenly becomes intuitive once it is freed from the supposed obligation to serve abstract values and public policy goals. The Due Process Clauses provide something narrower and more pointed than a generalized guarantee that the government will follow the law--namely, a guarantee that all persons will receive the predeprivation process to which they are entitled. Imagine for example that a witness implicates two defendants in a joint criminal trial, and only one of the defendants is permitted to be in the courtroom. In that situation, only one defendant has suffered a Confrontation Clause violation. As a result, only that defendant could claim a due process violation upon conviction. Fourth Amendment rights work the same way. We might imagine, for example, that the government illegally searched A's house and, in the process, discovered evidence incriminating both A and B. If convicted, the defendant whose house was illegally searched would suffer a deprivation of liberty without due process. The second defendant, by contrast, would have experienced no Fourth Amendment wrong and so would have received all the process to which he was entitled.

But if the due process exclusionary rule corroborates current doctrine, it also suggests a potential avenue for reform. When police search one person's house with the goal of acquiring evidence against the target of their investigation, the critical due process question is whether the target has suffered an invasion of privacy, such that his Fourth Amendment rights have been infringed. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Due Process Exclusionary Rule
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.