NCPA - National Center for Policy Analysis


July 22, 2008

In the United States, evidence against criminal defendants is routinely and automatically suppressed when police misconduct is found, says the New York Times.  The American legal system's exclusionary rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

The United States is the only country in the world to take the position that some police misconduct must automatically result in the suppression of physical evidence, says the Times.  In every other country, it's up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.  For example:

  • Australia uses a balancing test; it considers the seriousness of the police misconduct, whether superiors approved or tolerated it, the gravity of the crime and the power of the evidence.
  • The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence.

Opponents of the exclusionary rule say it is indirect, incomplete and in a way perverse:

  • Even if it deters unlawful searches, exclusion of evidence offers no remedy to innocent people whose rights were violated by unlawful searches.
  • More important, as Judge Benjamin Cardozo once wrote, "The criminal is to go free because the constable has blundered."

The Supreme Court has in recent years whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it, says the Times.  Chief Justice John G. Roberts Jr. and Justice Scalia (neither of whom is enamored with citing foreign law) both noted in recent decisions that the American approach in this area is unique and has been universally rejected elsewhere.

Source: Adam Liptak, "U.S. Stands Alone In Rejecting All Evidence When Police Err," New York Times, July 19, 2008.

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