Thursday, September 6, 2018
Wesley Oliver (Duquesne Law School) has posted Prohibition's Anachronistic Exclusionary Rule (67 DePaul Law Review (2018)) on SSRN. Here is the abstract:
We know, with some degree of certainty, when an officer may search a trunk, but only the vaguest of rules govern an officer’s decision to shoot a man dead. The exclusionary rule has generated a very large number of search and seizure decisions, each of which define the limits on an officer’s authority. No similar mechanism has required courts to regularly pass on the use of force by officers, leaving the most serious acts by police comparatively unregulated. The decision of the Supreme Court in Mapp v. Ohio in 1961 – a time when force and even harassment were greater concerns than searches – explains this dichotomy. By borrowing a remedy that gained acceptance during Prohibition, the Court in Mapp created a mechanism to guard against the fears of the 1920s, not the concerns of the 1960s or the present day. Mapp’s critics have claimed that the exclusionary rule was never appropriate as it required courts to ignore relevant, reliable evidence of guilt. This article offers a more scathing indictment of Mapp. Mapp addressed a concern of earlier generations and ignored the pressing need for oversight of police force. The Watts Riots reveals that the Court had missed an important issue. Decades later, fires and looting in Ferguson reminded us of this fact.