Saturday, April 27, 2013
Christopher Slobogin (Vanderbilt University - Law School) has posted A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases on SSRN. Here is the abstract:
The modern United States Supreme Court views the exclusionary rule as a means of deterring police conduct that unduly infringes privacy or autonomy interests. But in years past the Court also proffered two other reasons for exclusion: the importance of ensuring the integrity of the legal system (primarily by avoiding judicial complicity with police illegality) and the need to vindicate constitutional guarantees. Some version of one or both of the latter two rationales also appears to be the primary motivation behind the exclusionary rules in other countries. In contrast to the United States, however, in most of these countries exclusion is not very common. Those countries that focus on systemic integrity take into account not only the de-legitimizing impact of failing to exclude illegally seized evidence but also the truth-denigrating effect of excluding evidence. Those countries that focus on vindicating fundamental rights tend to define those rights narrowly, or undercut the vindication rationale in various other ways. After describing these developments, this paper examines, from both empirical and theoretical perspectives, the difficulties that arise in applying the deterrence, systemic integrity,and rights vindication models of the rule and concludes with thoughts about the possible alternatives to exclusion, the ways in which the exclusionary remedy can be refined, and the interaction of the exclusionary rule with substantive search and seizure law.