By Ashton B. Inniss, 3L
Staff Writer
The invited speaker and panel moderators reach a consensus: the future of the exclusionary rule is fading, shrinking.
On Friday, Oct. 9, the Southwestern Journal of International Law brought together U.S. and international scholars to discuss international applications of the exclusionary rule and the future of the rule in United States. Essentially, the exclusionary rule excludes admission of evidence at trial gathered in violation of the accused constitutional rights.
Following an eloquent and gracious introduction by Dean Bryant Garth, SW Prof. Karen Smith moderated the morning’s first panel on the “Current State of the Exclusionary Rule.” “There has never been universal support for the exclusionary rule,” declared Loyola Law School Prof. Laurie L. Levenson. Levenson discussed the recent Supreme Court decision Herring v. U.S. In that decision, handed down on Jan. 14, 2009, the Court extended the good faith exception and denied exclusion of evidence gathered after an arrest based upon an expired warrant in a negligently maintained warrant database. While the warrant for the defendant’s arrest was not valid, the Court permitted admission of the evidence based on the arresting officer’s good faith based on the information given. The professor was frequently referenced by other speakers throughout the symposium. Levenson concluded that the Court’s decision created an “unworkable, bizarre standard.”
Prof. Jody David Amour discussed the admission of a defendant’s fear of minorities to explain the defendant’s state of mind at the time a violent offense was committed when approached by an African-American. Amour termed this phenomenon “Negrophobia.” He found that those of his students who would admit this evidence would suppress evidence of a woman’s battered wife syndrome to explain why she acted violently toward an abusive spouse, and vice-versa.
Prof. Ellen S. Podgor, a former prosecutor and criminal defense attorney, finished the first panel. When discussing the rationale behind the exclusionary rule, Podgor described the justification that exclusion deters police from violating defendants’ rights “as just a façade.”
Prof. Máximo Langer, in moderating the second panel, “International Perspectives on the Exclusion of Evidence,” suggested that the U.S. should look to foreign models for guidance on our exclusionary rule. Canadian Prof. Don Stuart described Canada’s discretionary approach to exclusion where the jurisprudence for evidence is treated as a “living tree.” As a corollary, the decisions to exclude or admit evidence, as applied, often depend on individual judges who may never, or always, exclude evidence based on personal principles. Stuart recognized that individuals have no other effective remedy when the police violate their rights, besides exclusion.
Prof. Binyamin Blum discussed Israel’s fledgling exclusionary rule. While Israel does not have a constitution, the state has adopted a series of basic laws and has a judicially created exclusionary rule. As in Canada, the determination of exclusion relies upon determinations of individual judges. The more severe the crime, the more likely evidence gathered in violation of a defendant’s rights will be considered at trial. As Israeli criminal trials are not tried before juries, but before professional judges, there is a greater aversion toward admission based on the rationale that these judges will give the evidence an appropriate amount of weight. In Israel, the national security interest has eroded its already weak exclusionary rule. Blum criticized the deterrence rationale as based on empirical research that no one has collected.
Prof. Stephano Maffei expressed concern regarding the public’s escalating tolerance for state violations of individuals’ rights. Maffei discussed a recent case on appeal before the European Court of Human Rights to illustrate that balancing tests for admissibility of evidence promote majoritarian values. However, the true value of fundamental rights is that they are anti-majoritarian, he said.
Prof. Stephen C. Thaman, a former public defender and comparative law scholar, decries the lack of appreciation for constitutional rights by U.S. courts. The exclusionary rule arose in a time where the wrongs done by the state were more often worse than those acts committed by criminals. Today, the state can avoid the penalty of exclusion of relevant evidence because the state “can get all the evidence they need legally.” With palpable irony, Thaman asserted that “Americans are against big government in every aspect except when it comes to wiretaps, search and seizure.”
The symposium’s final panel, “Future Predictions on the Validity of Exclusion,” was moderated by SW’s recent hire, Caleb Mason. The panel’s first speaker, Prof. Andrew E. Taslitz, expanded upon Supreme Court Justice Ruth Bader Ginsberg’s concerns as expressed in Herring. Namely, denying exclusion for evidence gathered based on negligently maintained police warrant databases sends the wrong message to law enforcement entities. Specifically, when the state profits from its negligence, or wrongs citizens, it can cause a loss of faith in the justice system. Additionally, the Court’s decision creates an incentive for law enforcement agencies to maintain poor computer data about warrants as arrests made on expired warrants will lead to admissible evidence based on the arresting officer’s good faith. Taslitz framed the exclusionary rule as a public check on the government where “the perfect monitorial citizen, in the Fourth Amendment context, is the criminal defendant . . . [as a result of] strong motives to challenge” governmental intrusions.
Forecasting the future of the exclusionary rule, Prof. James J. Tomkovicz asserted that, “the past predicts the future of accelerated erosion of accelerated erosion” of privacy rights protected by the exclusionary rule. Lamenting the decline of the exclusionary rule, Tomkovicz lectured that “a mere ‘exclusionary rule’ that is not a constitutional right is much easier to erode.”
The symposium’s final panel speaker, Prof. David A. Sklansky, made three predictions about the future of the Fourth Amendment and exclusionary rule 10 years from now. First, the scope of events leading to exclusion will continue to shrink. The Herring decision made clear that only flagrant abuses would trigger exclusion. Also, abuses in police departments that engendered a strong exclusionary rule half a century ago do not occur as often today. Second, the exclusionary rule in the U.S. will still exist, and it will be stronger than its foreign counterparts. Third, the contours of the exclusionary rule will be as clear in 10 years as they are today.
Ultimately, suppression motions are the primary methods by which we send a message to the police about their behavior, although it is an imperfect message. Addressing practicalities of criminal practice, a former prosecutor for the U.S. Attorneys’ Office, Mason pointed out that “plea bargaining is always done against the backdrop of a potential suppression motion.”
