THE EXCLUSIONARY RULE REDUX — AGAIN

According to whether one starts counting with Weeks v. United States, (1) decided in 1914, or Mapp v. Ohio, (2) decided in 1961, we are closing in on fifty or one hundred years since the exclusionary rule was made part of Fourth Amendment jurisprudence. One would have thought that there has been more than enough time for the Supreme Court to have clarified what the rule is about and whether it is worth having. In broad outline, at any rate, the rule is not very complicated: if the police obtain evidence by means that violate a person's rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision has been extended to violations of other constitutional rights (3) and freighted with innumerable epicycles, and epicycles on epicycles, but it is at bottom straightforward. Clarification has not happened. Instead the exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness like "separate but equal" (4) and, in criminal procedure, the right to counsel before formal proceedings have begun. (5) It survives, but its reach is uncertain, its rationale questioned, and its value doubted. There has been no shortage of cases in which those issues are presented and discussed, usually in conflicting opinions that together leave no argument unsaid. It is something of a parlor game--with as much serious consequence--to browse through all that has been written for and against the exclusionary rule and extract just those words and phrases that support whatever position one has decided to take. Articles analyzing its constitutional underpinnings, ruminating about its likely effects, or studying its actual effects abound. Symposia, like this one, flourish. (6) Every few years, the demise of the rule is reported, but it then turns out that reports of its death were exaggerated. So here we are, at it again, prompted this time by two cases that follow the usual pattern but seem to make a more frontal, more threatening assault on the rule than we have been accustomed to, and so pose, yet again, the question what its future is, or rather, whether it has a future. In view of the current fashion for behavioral studies of the judiciary, especially the Supreme Court, (7) there may be some temptation to explain the Court's on-again, off-again attitude toward the exclusionary rule as nothing more than a consequence of the Court's shifting membership, hardline liberals and hardline conservatives never gaining more than an incomplete and impermanent ascendancy. There has, certainly, been a marked unwillingness to find the rule's common ground, perhaps more so or more enduringly so, than about other controversial matters. But even taking that into account, the course of the rule's jurisprudence is remarkable. All the more so, because it is not a "hot button" issue. Abolishing the exclusionary rule--a possibility, it should be noted, that presumably depends constitutionally on what the Court has from time to time offered as the rule's rationale--is regularly proposed, but, despite its detractors' prophecies of gloom and doom, I doubt that the public cares very much either way. Although carefully phrased questions elicit predictable responses, elections are not won or lost over the exclusionary rule. And, in fact, as the rule is now understood and applied, there is little convincing evidence that it makes much difference either way. To a considerable extent, the rule is a distinctly legal matter, not political, social, or economic. It gives us legal scholars something to do--keeps us, as it were, off the streets. The modern history of the rule begins with Mapp. But its early history, before Mapp, contained a preview of things to come. The exclusion of evidence was embraced but not wholeheartedly, rejected but not definitively. As one would expect, the Court's opinion in Weeks, where it all began, tilted toward the rights-based approach. …