2.1.1 Background and History

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

2.1.1 Background and History

The Fourth,¹ Fifth,² and Sixth Amendments³ to the US Constitution were designed to prohibit unreasonable governmental intrusion into people's homes, personal lives, liberty, and areas of privacy. These three amendments were written in response to perceived abuses by the British authorities in enforcing British law against American colonists.⁴ The rights expressed in the text of these amendments are enforced by a remedy that has proved controversial for many years. The remedy takes the form of an exclusionary rule, which prevents evidence obtained in violation of one of these rights from being used against the accused in a criminal trial to prove guilt.⁵

Some have argued that the Fifth Amendment contains its own explicit exclusionary rule with the language, "No person . . . shall be compelled. . . ."⁶ It prohibits the government from requiring a person to be a witness against himself in a criminal proceeding. Statements in violation of this privilege against self-incrimination are routinely excluded from evidence.⁷

Violations of the Sixth Amendment right to counsel may also result in the exclusion of some evidence. The Sixth Amendment protects suspects who have been formally charged with a crime, when the government deliberately elicits information about the crime charged without the accused's attorney present.⁸

The modern exclusionary rule is most commonly associated with the Fourth Amendment. The people's protection against unreasonable searches and seizures in their houses was drawn from the English common-law maxim, "A man's home is his castle." The individual's home was therefore thought to be a haven into which the government could intrude only under limited circumstances.⁹ Unlike the Fifth Amendment, however, the text of the Fourth Amendment includes no language indicating that evidence obtained unreasonably must be excluded from trial. And, unlike violations of the Sixth Amendment right, Fourth Amendment violations do not interfere with the trial process.

The exclusionary rule, as we know it today, is a judicially constructed remedy. Prior to its introduction, evidence illegally obtained by government officers ("state action") was generally admissible at trial, and remedies for unreasonable searches and seizures could be sought in separate, civil lawsuits against the law enforcement officers who committed the violations.¹⁰

The Supreme Court first declared an independent basis for exclusion of evidence under the Fourth...