THE EXCLUSIONARY RULE: COMPARISON OF ISRAELI AND UNITED STATES APPROACHES

• Author: by Lieutenant Colonel Amnon Strasehnow, Israeli Defense Forces
• Pages: 03

Zn this article, the author offers a mew from abroad of one of the most controversial principles of Amencan criminal law, the rule which requires exclusion from widenee of items, documents, confessions, and so forth, whzeh were obtained illegally by government agents. Lieutenant Colonel Strasehnow finds the rule illogical and unnecessary, and recommends its abolition He urges adoption of the Zsraeli practace, which, as in other common lau legal systems, is to admit all relevant evidence but to accord it more or less wezght aeeordzng to circumstances

Readers should find highly interesting the views of a scholar from a diffeerent legal tradition and society which does not accept as immutable all the points of erimtnal procedure which are taken more UT less for granted by American 1aw.yers.

1. INTRODUCTION

   There are few subjects in modern American criminal iaw concerning which so many words have been written as the "excluaionary

   ~ ~~

   *The opmons and emeiumne exprcasod in this article are those of the author and do not naeesanrily repre~ent the view of The Judge Advocate General's School, the Department of the Army, any other agency of the United States GOY-ernment, or any governmental sgeney of rhe State 01 1waeI.

   Completed m November 1980. lhia article waa prepared by the author 8n partial iulfillment of the requirements of the 29th Judge Advocate Officer Graduate Course, w e n during academic year 1880-ai st the JAG Sehooi. Charlotteswlle. Virginia.

   *'J A.G Carps, lsraeli Defenae Forces. Chief Milifnrp P I O L ~ C Y ~ O ~ ,

   1976.1980.

   and 1981 to present: deputy military advocate far Northern Dlsfrict, 1975.1976; mlilfary pdge m district c~urti-mamal,

   197s-1915. L.L. B., 1968, Hebrew Universitv of Jemasiem: eomoleted eoum at Israeli Defense Forces SrnB Collezs

   ~.

   1911. Completed Judge Advocate Officer Grsdvpte Course, JAG School, Chsrlotteanlie, Va., in May 1881.

   rule," which excludes from Consideration by a trial court evidence obtained by unlawful methods. This article compares two different legal systems in their attitude to the exclusionary rule, the legal system in the United States of America and that which applies in the State of Iarael. Although both systems originated from one com. mon legal system, the British common law, they have reached different, almost contradictory, results in their treatment of the above-menrioned controversial rule of evidence. Special emphasis is placed in this article on the effect af such a rule in the military legal system. The author 1s strongly of the opinion that the exclusionary rule should be abolished, especially in the military justice system.

   11. THE RULE AND ITS IMPLEMENTATION IKUNITED STATES COURTS

   The exclusionw mle, as a binding rule in the criminal pracedures in the United States, is a relatively new rule based primarily on case law and precedents of this century. It was only in 1914, when the United States Supreme Court, in the cam of Weeks u United States,I decided that evidence uncovered during an unlawful search must be denied admission at trial.

   For a long time the rule did not apply in the State courts, and was limited to federal courts only. In 1961, the Supreme Court decided that the due process provision of the fourteenth amendment re-quired application of the exclusionary rule also to state criminal proceedings. In Mapp v. Ohio,% an unusual case of unlawful search was presented. The Court said:

   The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional re-straints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions af privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty prom-

   Since that corneretone opinion of the Supreme Court, the rule has become binding throughout the United States. This rule mag be summarized as follows: All evidence obtained through an unlawful search or seizure, or as a result of use of unlawful methods of mves-tigation leading to a confession, or through an illegal lineup, or otherwise in violation of due process, will be inadmissible and must be excluded from consideration at trial.

   Many arguments have been made to Justify this mle, which often prohibits the courts from basing their findings upon relevant and completely objective evidence, like weapons or heroin, which were obtained without full compliance with the exclusionary rule's requirements. Those arguments may be summarized as follows: Total exclusion of evidence is simply the most effective practical means of enforcing the requirements for lawful investigation of crimes. On the individual level, policemen and other interrogators will be deterred from using unlawful means if they know that the products of their unlawful actions will have no evidentiary value. On the institutional level, it is desirable as a matter of public policy that the Government, responsible for upholding the law, not be allowed to profit from ite own illegal acts,4 and more specifically that the prosecution not be allowed to use "the fruits of the poisonous tree."

   Prior to analysis of these purposes behind the exclusionary mule, it should be emphasized that the rule is not a basic right of the individual recognized by the Constitution, but a creation of the courts in case law. With this in mind, scholars can examine the rule with greater detachment than heretofore. It would be a mistake to consider this rule unchangeable.

   In the 1949 case of Wolf u. Colorado,E Mr. Justice Black said as follows:

   I agree with what appears to be a plain implication of the Court's opinion that the federal exclusionary rule is not a

   'Biwns V. Stx Unknown Federal Agents, 408 US. 388, 414 (1971). For further discvssion of the purpsaes of the erelusmnry rule, 8ea Caiandrn v United Stares, 414 U S 336 (1874) Sa* &!bo text at notes 7 and 6,6336 U S. 26 (1W8)

   command of the Fourth Amendment but is a judicially ere-ated rule af evidence which Congress may negate.B

   In L'nited States u. Calandra,' decided in 1974, the Supreme Court concluded:

   The rule iz a judicially created remedy designed to safe guard Fourth Amendment rights generally through its deterrent effect, rather than a personal cnnstituional right of the party aggrieved.8

   Judge Malcolm R. Wilkey is also of the opinion that the excluaionary rule "is a judge made rule of widenee . . . it is not a rule re-quired by the Constitution. No Supreme Court has ever held that it was."8

   The exclusionary rule is not essential, vital, or indispensable under the Constitution, the major function of which is to guard the rights of the people. The rule is a tool fashioned by the courts to deal with ad-hoc problems which arise from poiice misbehavior and illegal government activity during an inveatigation. Such being the situation, the correct solution cannot be a continuation af current policy, in which relevant and substantial evidence id excluded from consideration by the court8 in the United States.

   Although nobody will doubt the importance of protecting basic rights of the individual, whether those rights are based on written constitutions or, as in other legal Sy8tems, are founded on elementary recognition of human worth, many people have had second thoughts as to whether the benefits of a safeguard such as the ex-clusionary rule are really aorth the price.

   Professor Charles A. Wright, in a 1972 article,1o observer that the exclusionary rule, in it8 current sweeping scope, can no longer

   eld ar 39'414 U 5 338 11874). #Id , at 343

   'Wllkey, The Ezclusiarary Ru!i--Whr Suppress Valid Elzdrnrr?,

   61 Judlcsfvre

   214 lNai 1978)'"'right, Must fhr Cnnuaal Go F ~ r r t,f fhr Conacoblr Blunders'. 60 ?exas L.Rev 736 11972)

   19811 EXCLUSIONARY RULE: ISREALI-US. COMPARISON

   be justified under the theory on which it was based. Professor Wright states:

   It can fairly be said of the Exclusionary Rule that it can not be proved to have a significant deterrent effect and that this effect is not so inherently likely that we can assume it to exist in the absence of proof. Its benefit to society is dubious and uncertain. Its cost to society is great and real. Hundreds or thousands of criminals go free each year because the police are found ta have violated, in one way or another, the intricate body of law on when and how they may search.''

   The author does not favor total abolition of the Nle, and prefers the preservation "of an Exclusionary Rule, cut down in scope, and intended for , . , flagrant cases."" The author feels strongly that:

   A rule that turns criminals of this kind free, can be justified only by clear and convincing evidence that its benefit to society outweights this obvious cost. As we have seen, the evidence of benefits from the Exclusionary Rule falls far short of meeting that test.lg

   There is no concrete statistical information available which shows whether and to what extent the exclusionary rule actually deters policemen and other law enforcement officials from violating the rights of suspects. However, the extent to which courts continue to invoke the rule in case after case tends to suggest that those who are supposed to be deterred have not yet "gotten the message."

   Professor Dallin H. Oaks, after a deep and thorough examination of this question, seems to be far from satisfied with the rule's results, or with the application of the Nk in general. He concludes that there is no "empirical substantiation or refutation of the deterrent effect of the Exclusionary Rule."14

   '>Id., at 741 "Id., st 744. Laid., at 742

   l'Oska, Sl*dying the Ezelusionav Rule ~n Search and Sezrwe, 57 U. Chl. L.Rev. €46, 709 (1970).

   The author's awn Judgment is that the exclusionary rule is a fail-ure as a deterrent. It should be abolished because it:

   Imposes excessive cost8 on the criminal justice system. It provides no...