Exclusionary Rule's Crucial Role

Article excerpt


There is a growing public awareness that the war on terror has also become a war on the civil liberties of Americans, that we are trading privacy for the illusion of security and will soon have neither. The assault on our rights that began more than 20 years ago with the war on drugs has mushroomed in the last few years.

Now there is a threat to one of the last remaining bulwarks against governmental intrusions into our lives: the exclusionary rule, which provides that evidence illegally seized by the police cannot be used as evidence in court. The simple fact is that the exclusionary rule is vital to the preservation of our liberties and must be maintained.

The Supreme Court on Tuesday will consider the case of Herring v. United States, which questions whether that rule should be curtailed. In 2004, sheriff's deputies in Coffee County, Ala. arrested Bennie Herring based on a computer entry that showed an outstanding warrant for him, even though the warrant had been withdrawn five months earlier. He was then prosecuted for the drugs and gun found during the arrest.

Although the trial judge and the federal appeals court both found the arrest illegal and that the sheriff's department was negligent in not maintaining accurate records, they allowed the government to use the evidence, concluding the officers acted in good faith and that the exclusionary rule should not apply.

Critics of the rule have made the same arguments for decades: It does not protect innocent people; there are civil and administrative remedies available for those whose rights are violated; other countries do not employ the rule; and a blunder by the police should not cause a criminal to go free. None of these arguments can survive the test of actual experience.

It is true that the exclusionary rule does not provide any remedy for an innocent person who has been the victim of an unreasonable search; an innocent person has no remedy but a civil suit. Filing a lawsuit, however, will not help anyone who possessed something illegal. Jurors have no sympathy for such people and will not award them compensation. Administrative remedies exist only in theory. Police departments do not discipline their own for illegal searches that uncover illegal contraband.

Most perplexing is the argument that we should abandon the exclusionary rule because it is not endorsed by other democracies, as such an argument does not seem to be applied in any other area. …