The case for the contingent exclusionary rule.

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Exclusion of evidence The author examines the long debate over the exclusionary rule and proposes that the courts experiment with evidence suppression orders that are contingent on the failure of the police to pay damages set by the court, thus giving judges the option of penalizing police misconduct without freeing the guilty.



Few debates in American law are as sustained, or as bitter, as the debate over the exclusionary rule. Critics have attacked the exclusion of unconstitutionally obtained evidence for compromising the pursuit of truth in adjudication,(1) for exceeding the constitutional authority of the judiciary,(2) and for fostering police perjury and judicial hypocrisy.(3) Defenders have laid the blame for the "cost" of exclusion on the Fourth, Fifth, and Sixth Amendments that prohibit the acquisition of reliable evidence when complied with, rather than on the exclusionary rule which operates only when these substantive constitutional provisions are violated.(4) Exclusionary rule advocates have insisted on the constitutional necessity for some effective remedy for constitutional violations,(5) and maintain that exclusion offers a far more attractive remedy than reliance on damage actions undermined by valuation problems, immunity defenses, and inadequate legal representation.(6) The Supreme Court seems to have adopted both positions, by continuing to suppress tainted evidence in the government's case-in-chief(7) while also recognizing a host of exceptions to the exclusionary rule. The most obvious of these are the standing doctrine,(8) the good-faith exception,(9) and the impeachment exception.(10)

The debate goes on because both tort remedies and the exclusionary rule have important advantages and serious drawbacks. Although appropriate reforms could overcome most of the defects with tort remedies, such reforms depend on appropriate legislation. Given the legislative incentives bearing on law-and-order issues, no legislature has yet delivered such reforms, nor is any likely to do so. Moreover, because constitutional violations ordinarily do not inflict the kind of material injury that our tort system compensates, tort schemes are plagued by the difficult problem of evaluating the plaintiffs' damages. Set too high and the damages would overdeter by inhibiting the police from vigorous action in cases near the border separating lawful from unlawful searches and seizures. Set too low and the damages would render the Fourth Amendment nugatory.

The exclusionary rule solves the political incentives problem because the Supreme Court imposed the rule as a matter of federal constitutional law. Exclusion also solves the valuation problem, because exclusion comes very close to setting the sanction equal to the government's illegal gain. Exclusion, however, suffers a serious psychological problem. Judges are reluctant to free obviously guilty criminals. Trial judges, therefore, tilt fact-finding against exclusion, while appellate judges give constitutional rights crabbed and grudging interpretations. As a result, it is fair to say that the Fourth Amendment is still underenforced.

This Article proposes a new conversation about constitutional remedies, a conversation about how exclusion and damages might be combined to provide an effective yet politically sustainable remedy for constitutional violations. The gist of the proposal is that courts should begin to experiment with suppression orders that are contingent on the failure of the police department to pay damages set by the court. The government, in this context, has no objection to receiving such an offer. If the government accepts the offer, it waives its objection to damages set by a judge without statutory authorization. If the government declines, it is in no worse position than if the judge had ordered suppression unconditionally.

The defendant might object on the ground that he has a constitutional right to the exclusion of the evidence. With respect to statements compelled in violation of the Fifth Amendment, or uncross-examined declarations admitted in violation of the Sixth Amendment confrontation clause, this claim is probably correct.(11) In other areas of criminal procedure doctrine, however, the courts exclude to deter future violations rather than to repair past violations. So long as the damages are set high enough to achieve deterrence comparable to that secured by exclusion, the defendant has no objection. Indeed, to the extent that constitutional remedies aim to compensate as well as to deter, damages that satisfy concerns for deterrence clearly compensate better than exclusion.

This proposed contingent suppression remedy has major advantages over the present system of self-contained suppression motions and self-contained damages actions. Compared to tort remedies, the contingent exclusionary rule solves the political problem because the federal courts would be setting the damages. Even conservative judges might jump at the chance to replace the despised exclusionary role by imposing responsibility for loss of the conviction where it belongs--on departments that fail to train and discipline their officers to comply with constitutional standards. Because the government must waive its objection to the damages to avoid suppression, the courts could assess liquidated or punitive damages, cut through immunity defenses, and impose entity liability--all of the frequently urged, but never tried, prescriptions for effective damage actions.

As for the valuation problem, for deterrent purposes damages should be set equal to the expected governmental gain from the violation. Exclusion comes close to achieving this balance because, for the most part, evidence is gathered illegally to be used in prosecutions.(12) Contingent suppression remedies, thus, come with a built-in measure of adequate deterrence. If the government typically chooses to pay the damages, then damages are set too low. If the government typically chooses not to pay and forgo the evidence, then damages are set too high. Properly set, the damages should leave the government indifferent between exclusion and damages in the ordinary case, yet still free to pay the damages when the illegality turns up an exceptionally culpable or dangerous crime.

Compared to the current exclusionary rule, the contingent suppression remedy would encourage honest fact-finding and fair interpretations of the Constitution. Judges resist freeing patently guilty offenders, and are willing to credit police perjury at the trial court level and craft exceptions at the appellate level to prevent this result. A contingent suppression remedy, however, gives the suppression hearing judge a new option. She can reject improbable police testimony without freeing the guilty. The police department will be responsible for the escape of the guilty, for only on a refusal to pay damages set high enough to deter would the criminal go free.

On appeal, the same process would soon set to work. More generous interpretations of Fourth Amendment liberties would become more attractive. The Supreme Court might even reinvigorate the exclusionary rule itself, by cutting back on the exceptions to exclusion recognized under the balancing test. Viewed as the gateway to damages, rather than as a roadblock to prosecution, the exclusionary rule would seem far less draconian.

In a variety of other doctrinal contexts the Hobson's choice of no remedy or exclusion has distorted the substantive law. The failure to gather exculpatory evidence, suggestive identification procedures, and equal protection challenges to police arrest and search decisions all have faced the uphill struggle of persuading judges to release the apparently guilty. At present, for example, a suspect stopped and searched because of his race can raise an equal protection challenge only by demanding the suppression of the evidence. Naturally judges are reluctant to release guilty black defendants because equally guilty white suspects were not searched. These same judges might be eager to attack discriminatory enforcement--which when either real or perceived does so much to corrode public confidence in the administration of justice--by imposing damages on police departments whose officers invidiously target minority group members. If the damages are set high enough to deter, the new remedy would have enabled--at long last--a meaningful judicial response to such practices as stopping motorists for "driving while black."(13)

Whether even the federal courts could be counted on to set the damages high enough to provide a disincentive to unlawful police conduct comparable to the disincentive provided by the exclusionary rule seems to me the sixty-four dollar question. I, therefore, entertain serious doubts about this proposal. However, I am confident that the contingent suppression order offers an important new idea in constitutional criminal procedure remedies. I put the idea forward not as a finished policy proposal, but as a way to revitalize academic discourse about this important subject.

The supporting argument follows three steps. Part II briefly outlines the standard arguments in the exclusionary rule debate, and explains the psychological defects with exclusion and the valuation and political problems that attend damages actions. Part III explains how the contingent exclusionary rule would work, and sets out the legal argument supporting trial court authority to impose contingent suppression orders. This Part also explains how contingent suppression orders would improve upon the present regime of self-contained tort and suppression remedies. Part IV considers how the new remedy might prompt some improvements in the substantive law of criminal procedure, paying special attention to the Fourth Amendment, due process, and equal protection.


A. An Overview of the Debate

One of the most surprising features about the early exclusionary rule cases is the absence of judicial dissent from the basic proposition that unconstitutionally seized evidence should not be admissible against the search victim at trial. This is particularly surprising given that the theory of exclusion went through a serious metamorphosis between the announcement of the rule in the...

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