The Legal Process from a Behavioral Perspective

By Stuart S. Nagel | Go to book overview

CHAPTER 23
Effects of Excluding Illegally Seized Evidence

Much has been written about the need for more testing of the empirical effects of alternative legal policies.1 Much has also been written about the desirability of adopting or not adopting the rule excluding illegally seized evidence from courtroom proceedings.2 This chapter has two purposes. One is to illustrate some of the methodological problems involved in systematically testing legal effects. The other is to indicate the substantive findings of a study on the effects of the exclusionary rule.

The main data for this study were compiled through the use of questionnaires.3 In November 1963, 250 questionnaires were mailed to a police chief, a prosecuting attorney, a judge, a defense attorney, and

The writer thanks Albert Wicks for his participation in an early phase of this study, and Robert Phares for compiling the data for Table 23-3. Both are former political science students at the University of Illinois.

____________________
1
See, e.g., BEUTEL, SOME POTENTIALITIES OF EXPERIMENTAL JURISPRUDENCE AS A NEW BRANCH OF SOCIAL SCIENCE ( 1957); LASSWELL & LERNER, THE POLICY SCIENCES -- RECENT DEVELOPMENTS IN SCOPE AND METHOD ( 1951); Cowan, Experimental Jurisprudence -- Science, Morality, Law, 46ARCHIV FUR RECHTS-UND SOZIALPHILOSOPHIE57 (Supp. 1960).
2
See, e.g., the four-article debate between Fred Inbau and Yale Kamisar: Inbau, Public Safety v. Individual Civil Liberties: The Prosecutor's Stand, 53 J. CRIM. L., C. & P.S. 85 ( 1962); Inbau, More About P.S. v. I.C.L., 53 J. CRIM. L., C. & P.S. 329; Kamisar, P.S. v. I. Liberties: Some "Facts" and "Theories," 53 J. CRIM. L., C. & P.S. 171; Kamisar, Some Reflections on Criticizing the Courts and "Policing the Police," 53 J. CRIM. L., C. & P.S. 453; and the debate among the Justices of the Supreme Court in Wolf v. Colorado, 338 U.S. 25 ( 1949 and Mapp v. Ohio, 367 U.S. 643 ( 1961).
3
A copy of the questionnaire and the explanatory letter is included in the Appendix to this chapter. The items included in the questionnaire were chosen from a longer list in view of the criteria of (1) relevance to the exclusionary rule debate, (2) comparability of answers among respondents, (3) brevity of the question and likely answer, (4) meaningfulness of language, (5) interest to the respondent, and (6) avoidance of duplication.

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