You are a legislator and have been reading in the paper about a notorious crime in the capital city. The defendant was acquitted of murder charges, because her confession was determined inadmissible at trial due to a violation of the her rights. Like everyone else in the state, you are very angry about what has happened. You understand the exclusionary rule, but you feel that it simply goes too

Question

far and has let a terrible murderer free to walk the streets. You have decided to come up with a state law to address this issue and make sure that this will never happen again. Explain the nature of a state law that would address this issue, justify its use rather than the exclusionary rule, and discuss any possible negative consequences that may result from its use.

What will be an ideal response?

Answer 1

The exclusionary rule helps preserve judicial integrity by preventing the denial of a person's Fourth Amendment and other rights, but its primary purpose is to deter government misconduct. The student therefore should try to fashion a law that deters government misconduct instead of losing the evidence at trial. The law could develop an independent review board at the state level to consider evidence that seems to have been gathered against the rights of the accused, it could create a civil tort action against the government, it could allow a hearing separate from the main criminal trial but before the same judge or jury, it could adopt a good faith exception that is expanded very broadly, or it could follow the British model that admits the evidence but punishes the police officer. Even the Supreme Court, in Davis v. United States (2011), is moving away from making the exclusionary rule automatic, balancing interests of justice and deterring crime. The Court will look at the flagrancy of the violation and the culpability of the officer when balancing these interests. No matter what approach the student takes, the student should consider that lessening the punishment may no longer deter police misconduct. This might result in a very aggressive police department that no longer respects individual rights and, instead, feels unrestricted in securing evidence of criminal behavior.