Student Blogger - When Old Is Not Gold: The Exclusionary Rule Debate Revisited

An oldie, but goodie of criminal procedure has once again been making the rounds in the staid halls of legal academia. The exclusionary rule, long a favorite topic among law professors (and perhaps not so coincidentally, the bane of law students), has been the subject of debate almost since its inception. But despite its critics, it has also been a seemingly unimpeachable pillar of constitutional criminal procedure since the Supreme Court held in Mapp v Ohio (1961) that the remedy applied to states (via the Fourth and Fourteenth Amendments) as much as to the federal government.

That is, until now. Recent Supreme Court decisions such as Hudson v Michigan (2006) and Herring v United States (2009) have sparked a new debate over the efficacy of exclusionary remedy, and once again drawn its continued viability as a constitutional mandate into question. But is that debate really new? In his new paper, The New Exclusionary Rule Debate: Still Preoccupied with 1985, presented at last week's Crime and Punishment Workshop, Professor Donald Dripps of the University of San Diego School of Law contends that it is not.

After pointing out flaws in both the majority and dissenting positions in Herring, Professor Dripps proposes a new contingent exclusionary remedy, which he calls virtual deterrence. Instead of automatically suppressing evidence upon violation of the Fourth Amendment, argues Dripps, the court ought to be allowed to consider the remedial or disciplinary measures undertaken by law enforcement. If the court finds that these measures were sufficient, it should allow the evidence; otherwise, the exclusionary rule would apply as usual. The benefits of such a bifurcated process according to Dripps would be first, to lower the social cost of excluded evidence while remaining committed to the Fourth Amendment; and second, to decrease so-called Fourth Amendment fraud (that is, police perjuring themselves to avoid the harsh result of evidence exclusion).

The paper sparked a lively discussion among faculty and students at the workshop. If we accept that the Fourth Amendment requires some costs rather than striving to make its application costless, what is wrong with the current system of balancing, asked one faculty member. The response: the balancing ought to occur in the substantive doctrine, not in the remedy.

Another faculty member expressed some skepticism about whether the virtual deterrence approach would really deter police from committing perjury, given that they would nevertheless face sanctions for violations. It might not deter police, replied Dripps, but it would ensure that courts were less likely to accept Fourth Amendment fraud and more likely to root out perjury (as they do in the civil context) because the concomitant consequence of exclusion would no longer be present.

Whether the exclusionary rule's days are numbered or it is destined to out live us all is hard to know given the Supreme Court's schizophrenic jurisprudence on the subject in recent years. But, regardless of the rule's fate, the debate over its efficacy is likely to persist. For the conversation to move forward, new approaches will have to replace the tired arguments of yesteryear; Professor Dripps's latest paper is a move in that direction.