Mimesis Law
22 April 2019

The Exceptional Exclusionary Rule

September 27, 2016 (Fault Lines) – As a young lawyer, I was told an apocryphal story about hearsay. In all likelihood there is some version of the story told by lawyers everywhere. It went something like this: There was a newly elected trial judge who had never been in a courtroom before. So everyone expected him to be terrible. After he had been hearing cases for several months, his bailiff came to talk to the judge. You see the bailiff was an old timer in the courts. Although not a lawyer, after years of trials and hearings, he had a good grasp on the law.

So he asked the judge, “I have been watching you, and I must say I am impressed with how you handle hearsay objections. By my count you haven’t gotten one wrong. What’s your secret?”

The judge gave him a puzzled look and answered, “There’s no secret; every lawyer knows it. In fact it was the first thing my evidence professor told the class. There’s always an exception to the hearsay doctrine. So, I just overrule every objection. On appeal the other side will find the exception, and I won’t be reversed.”

While the overstatement is part of what makes the story (somewhat) funny, it does convey useful information to new lawyers. Though, admittedly, it seemed more like a silly joke until I heard similar explanations of hearsay given by other lawyers. The bottom line is despite what Evid. R. 802 says, a lot of hearsay makes its way into court cases every day. There’s something about the strict application of the rule that no one really likes, but it’s an old rule with some utility. Plus, no one’s come up with a better rule to handle the few things that it truly excludes.

Recently, Akhil Amar made similar observations about the Exclusionary Rule. He starts out early with this observation:

[W]henever the modern Court has squarely focused on the exclusionary rule itself – giving express thought to whether the rule’s contours should be widened or narrowed – the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.

Amar then goes on to detail a number of cases from the last 40 years that support his above conclusion. The cases he cites certainly are persuasive of his point. From there Amar argues that there has been a stable majority over time that has despised the Exclusionary Rule. The essay does not dive deep into what the judiciary despises about the rule. Amar grounds his personal objections to the rule in originalism.

There are a number of reasons why the judges may feel this way: otherwise admissible evidence is kept away from the jury; defendants gain an unearned windfall because the constable blundered; it is harsh remedy for most fourth amendment violations; and it may resolve the case for a non-merits-based reason.

In the cases Amar cites, chances are that each justice forming the majority had a different reason for despising the Rule, although the above offered explanations are, to some degree, overlapping. Of course the more cynical among the criminal defense might say that judges don’t like any limitation on their authority, particularly if it stops them from wearing the law enforcement jersey under their robes.

One wonders if the judge-made rule is despised by judges, then why is it that the judges don’t change the rule. Amar talks a lot about the justices’ unnecessary fealty to stare decisis. But that really isn’t an explanation; it’s more of a rationalization. There has to be some deeper reason why the Exclusionary Rule hangs on despite being despised.

In large measure, it seems to function much as the hearsay rule. On its face, the rule strictly makes evidence inadmissible. There is no weighing. The potential evidence either is or isn’t admissible. But like hearsay, the Exclusionary Rule, and the Fourth Amendment more broadly, has many, many exceptions. So much so that the otherwise strict statement of the law is rendered largely meaningless.

There have been calls to banish the Exclusionary Rule. One such suggestion is providing instead for civil remedies in the event of an unlawful search and seizure. Scott Greenfield is not impressed with this idea. Others have doubled down on the civil remedy idea, arguing that it was the original remedy and better deterrent for search and seizure violations. In fact, proponents argue that once upon a time, state courts rejected adopting an exclusionary rule when they were offered the chance.

In theory, civil rights actions and something like the Exclusionary Rule in criminal law should provide robust protection against unlawful searches and seizures. But Jeremy Christiansen explains it like this:

I agree that the exclusionary rule is justifiable only in terms of its (alleged) deterrent effect, and thus it makes no sense to exclude evidence where it is unlikely to have such an effect.  But the reality of the toxic mixture of qualified immunity and an exclusionary-rule remedy for Fourth Amendment violations is that many, many people are, subject to arbitrary police power with no recourse.

Perhaps if it’s broke, you should fix it. Jeremy offers six reasons why a remedy under state law is preferable to the Exclusionary Rule. Among the reasons he gives are no immunity doctrines, potential punitive damages, no good faith defense for the state actor, and it is self-executing.

He sums up his proposal as follows:

My proposed solution is that state courts (at the behest of enterprising plaintiffs’ lawyers) begin to rely on the original meaning of their state constitutions as a means of filling the remedial gap left by the “rise of qualified immunity and decline of the exclusionary rule.”  State constitutional rights are independent of federal rights.  So perhaps we could engage in a trial period in which the two systems exist simultaneously: an exclusionary remedy in criminal proceedings via the Fourth Amendment, and a true tort remedy (unencumbered by qualified immunity) via state constitutions.

This would allow the courts and the public to weigh the costs and benefits in a comparative way that would be more helpful than trying to compare immunity-burdened tort regimes (like Bivens and § 1983) with an exclusionary-rule one.  In this way, (as Bernick recognizes is necessary) I think we can more closely hue to Chief Justice Marshall’s observation, that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receive an injury.”

This proposal offers the possibility of a broader remedy than most defendants currently enjoy. After all, it is rare for a granted motion to suppress to be a walk off home run. Perhaps though, the defendant will enjoy the lesser charge or lower sentence. Maybe that’s better than a judgment entry and a stack of bills. A large commissary account is nothing to sneeze at.

On the other hand, there is the stigma that the police cheated by getting a conviction on ill-gotten evidence. This is coupled with the belief that civil penalties are just things cops shrug off. That’s not been my experience being on both sides of civil rights actions. No one likes to be called out for a mistake and penalized for it.

Besides, the kind of cops who do not care about being named in a civil suit are the same ones who are not going to either be bothered by suppression or take ownership for it. Cheaters typically deny cheating, right Barry Bonds? And to the extent bad officers enjoy job protection, it’s not likely a granted suppression motion will change that either. Regarding the issue of so-called cheating, there is nothing obviously superior by penalizing the state in the criminal case than in a civil case. It’s now custom, but so once were powdered wigs.

There is another reason why in the long run civil remedies can change behavior. By benefit of a criminal remedy for unlawful search and seizure, civil immunity, and a narrow Exclusionary Rule, there is often very little financial exposure for police departments, cities, and counties. But broadening the availability of financial awards could eventually drive insurers to reign in some of the misconduct. Currently, the risk pool is too safe for insurers to put pressure on the insured to change.

On balance the rule, excludes very little improper behavior and, along with civil immunity, leaves the wronged without any other remedies. Yet, the legal system hangs on to it and refuses invitations to banish it. If nothing else it, seems to capture the truly egregious cases of unlawful searches and seizures. So, it does serve a policing purpose at the extremes. But it does so at the expense of accountability for smaller violations.

Directing accountability as close as possible to the party committing the action is the best way to achieve change. This is particularly so if individual actors were not indemnified by the state for egregious violations. Moreover, the wronged only get a remedy if they are criminally charged. Because the criminal justice system tends to be like a funnel, there is likely a not insignificant number of uncharged people or defendants who make early pleas, who never get a realistic shot at a remedy.

If we’re going to keep the Exclusionary Rule around, we should either enforce it or reformulate it. Alternatively, we can return to the roughly first 150 years of this county when civil remedies were the answer to the problem of unlawful searches and seizures.

4 Comments on this post.

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  • bacchys
    27 September 2016 at 10:39 am - Reply

    The tort remedy is no remedy at all. I don’t recall if it was discussed here at Fault Lines, but a recent Fourth Amendment tort resulted in a whopping $18 judgement in favour of the plaintiff.

    That’s basically a pass to the cops to violate the Fourth Amendment whenever they feel like.

  • Greg Prickett
    27 September 2016 at 10:56 am - Reply

    Civil remedies are not the solution, because the government indemnifies the officer.

    If, on the other hand, you stop the indemnification and make the civil judgment be against the officer only, and couple that with criminal charges against the officer for something like Official Oppression (Tex. Pen. Code 39.03(a)(1)), then maybe – but only if the prosecutors will actually bring charges against the officers.

  • Ken
    27 September 2016 at 9:01 pm - Reply

    Civil remedy would only come close to being effective if court judgments against officers are not dischargeable in bankruptcy. But judges may use many tricks to acquit officers out of sympathy.
    In addition, the doctrine of respondeat superior needs to be extended to include government actors. Where too often police employers refuse to give good training or supervision that would unfairly prejudice the officers.
    I have read too many posting by cops stating that they are not doing their job if they are not getting sued.

  • Peter Gerdes
    29 September 2016 at 11:47 pm - Reply

    Practically speaking, given the possibility of police reprisal, attorney fees etc.., do you really thing many people who are subject to an illegal police of their trunk without any evidence of a crime being found are going to go to court to pursue damages? If the only recourse is damages isn’t it likely that those individuals who are illegally searched and contraband is discovered will have to sign away the right to those damages as part of any plea deal?

    Worse, the cases where it matters the most that police don’t engage in illegal searches, i.e., those cases where they uncover particularly embarrassing or private material, will be situations where the aggrieved party will least want to seek damages.

    IMO the exclusionary rule should be applied more stringently. It is virtually perfect in terms of incentives.

    Moreover, I think it correctly reflects the fact that it SHOULD be hard for the government to prosecute certain sorts of crimes. I suspect that the 4th was in part motivated by distaste at the use of searches to turn up evidence of sedition in private papers and even if not I think it is an important element in the protection of liberty. It should be hard to prosecute crimes which produce no external evidence of their existence.