Prohibition, stare decisis, and the lagging ability of science to influence criminal procedure.

• Author: Oliver, Wesley M.
• Position: Symposium on the Center on Wrongful Convictions

TABLE OF CONTENTS INTRODUCTION I. PROHIBITION LED TO ACCEPTANCE OF EXCLUSION OF RELIABLE PHYSICAL EVIDENCE II. THIRD DEGREE FEARS OF THE ROARING '20S TAKE FOCUS OFF RELIABILITY III. EFFORTS TO CABIN THE EXCLUSIONARY RULE LEAVE EYEWITNESS IDENTIFICATIONS UNDER-REGULATED CONCLUSION INTRODUCTION

Investigatory constitutional criminal procedure is, in many ways, backwards. Police are more effectively deterred from minimally intrusive misconduct that produces reliable evidence than they are from engaging in misconduct that threatens wrongful convictions. Physical evidence obtained in an unlawful seizure is excluded merely because of the means of the seizure, (1) while efforts by police to contaminate confessions or eyewitness identifications yield the exclusionary sanction only if courts find that police misconduct produced unreliable evidence. (2) Police are thus given greater latitude under our constitutional scheme to manufacture false evidence than to discover legitimate evidence.

This anomaly can only be explained by the historical context of modern constitutional criminal procedure. While the current scheme of police regulation has roots in jurisprudence prior to the Prohibition Era, from 1920 to 1933, it was the rampant excesses during Prohibition that led states to adopt draconian rules excluding reliable physical evidence (3) and prompted widespread concerns about police practices, notably interrogation practices. (4) Third-degree tactics came into disrepute in the 1920s even when they produced reliable confessions. (5) Inaccurate eyewitness identifications were hardly contemplated, but reckless and destructive alcohol searches and third-degree tactics made front-page news. Police abuses in this era were feared for their own sake, irrespective of their potential to produce wrongful convictions. (6)

The criminal procedure revolution of the 1960s largely constitutionalized the scheme of police regulation developed as state courts responded to police excesses created, exacerbated, and highlighted by Prohibition. Mapp v. Ohio, which required states to exclude unlawfully obtained evidence, was justified in light of state adoptions of the exclusionary rule, most of which occurred during Prohibition. (7) Miranda v. Arizona traced its origins to the findings of the Wickersham Commission Report, a Prohibition Era re-telling of decades-old interrogation abuses. (8) Whatever merits Miranda may have as the primary mechanism of screening confessions, ensuring reliability is not one of them. (9)

Neither the recent spate of DNA exonerations, 10 nor scientific discoveries about the problem of false confessions, (11) nor incorrect witness identifications, (12) have galvanized society to revamp the regulation of police in the way that Prohibition did. (13) As a result, the regime designed to guard against over-zealous police continues to define the contours of constitutional criminal procedure. Police brutality in the search for evidence is not a major concern in modern society, while police contamination of confessions and identifications has been shown to lead to wrongful convictions. (14) Our patchwork rules of constitutional criminal procedure thus remain backwards. (15) They over-deter the collection of reliable evidence and under-deter the fabrication of false evidence.

Criminal procedure doctrines are being questioned as reliability is becoming an increasingly important basis for admitting or excluding challenged evidence. State courts and legislatures have gradually shown greater concern about reliability in eyewitness identification, (16) while federal courts are increasingly unwilling to exclude reliable but illegally obtained evidence. (17) Yet, there has been no substantial effort to overhaul or overrule the basic framework of constitutional criminal procedure. (18) Instead, courts have identified circumstances, which have not been previously considered and are unrelated to the reliability of the evidence, in which evidence otherwise inadmissible under Warren Court doctrines may be admitted. (19) Understanding that our scheme of criminal procedure has its origins in Prohibition--a quirky period in America's past--should make courts more willing to overhaul criminal procedure in ways that are at least no less sensitive to the risks of wrongful conviction than they are to risk of improper searches.

Part I of this article lays the foundation for the historical claim, illustrating the role Prohibition played in creating and prompting widespread acceptance of a rule excluding reliable but illegally obtained physical evidence to deter improper searches. Part II then demonstrates how the Prohibition-created fear of investigatory police practices reoriented rules on confessions to exclude statements because of police misconduct rather than concerns about the reliability of improperly obtained confessions. Finally, Part III describes the efforts of the Supreme Court to cabin, but not fundamentally overhaul, this politically unpopular scheme of police regulation, leaving largely unregulated the process of eyewitness identifications.

1. PROHIBITION LED TO ACCEPTANCE OF EXCLUSION OF RELIABLE PHYSICAL EVIDENCE

   The bulk of any course on investigatory criminal procedure involves limits on searches for, and to a lesser extent seizures of, tangible and intangible evidence. (20) Courts have created more doctrines regulating police tactics designed to uncover and obtain physical evidence and recordings than they have for any other techniques of law enforcement. (21) And, of course, this evidence is almost always quite reliable. (22) Unless planted, the marijuana found in a defendant's pocket in all likelihood belongs to him; the conversation intercepted on a wiretap is unlikely to falsely incriminate the parties. The extensive limitations on the ability of police to obtain reliable evidence are a relic of Prohibition.

   The existence of a vast body of law governing searches and seizures is not surprising. The exclusionary rule, which forbids the use of illegally obtained evidence in criminal prosecutions, has given a host of litigants, for almost a century, an incentive to require judges to define the parameters of legitimate searches and seizures. (23) The existence of the exclusionary rule is the surprising part. The tradeoff the rule makes between reliability in criminal trials and deterring police misconduct is so radical--and such a breach from history--that one would expect that a substantial change in circumstances would have been required to create it. Yet the connection between the exclusionary rule and Prohibition has been largely overlooked.

   The rule was roundly rejected prior to Prohibition as undermining the reliability of trials. (24) The country's split personality on Prohibition meant that many would have liked to see the bootlegger--and certainly the bootlegger's customer--go free. (25) Even more were willing to let the bootlegger go free to deter police from engaging in the aggressive searches for alcohol that have come to be iconic images from the Roaring '20s. (26)

   The full history of the exclusionary rule--and therefore the depth of the connection between Prohibition and the rule--is not well known, as most scholars assume the United States Supreme Court created the rule in Boyd v. United States in 1886. (27) A willingness to sacrifice reliability to deter unlawful liquor searches, however, pre-dated the period of National Prohibition by many decades and was prompted by state-level alcohol laws. (28) In the mid-nineteenth century, states throughout the Northeast and Midwest adopted versions of Prohibition. (29) Fears of unlawful liquor searches under these laws led a number of these states to adopt a version of the exclusionary rule limited to unlawful alcohol searches. (30)

   Liquor prosecutions under these laws were initiated when complainants alleged that alcohol could be found in a particular place and at least one complainant described the reason for believing the alcohol could be discovered in this location. (31) In a world of only a few nascent metropolitan police forces, the enforcement of these laws fell on private citizens, the most zealous possible enforcers of state prohibitory laws. (32) Beyond concerns about the new laws--and the searches that would be necessary to make them effective--the objectivity of these witnesses raised serious concerns. (33)

   Appellate courts responded by developing a mechanism to limit overreaching by these aggressive volunteer agents. (34) Judgments of conviction were set aside when complainants failed to adequately describe a basis for believing alcohol could be located in the place searched. These courts regarded the entire prosecution to be a nullity, because the complaint, the charging instrument, was invalid. (35) Though this mechanism was limited to liquor cases, and limited to cases involving bad complaints (what modern lawyers would describe as invalid warrant applications), 36 this mid-nineteenth century innovation was undeniably an early version of the exclusionary rule. Courts were refusing to permit prosecutions for liquor possession to proceed because of the unlawful manner in which the contraband alcohol was seized.

   Contemporaneous with the adoption of the Eighteenth Amendment, most states enacted provisions complementing the federal ban on alcohol. (37) As states attempted to enforce these new laws, state courts began anew to embrace a rule that prevented a conviction when the police employed unlawful means to search for alcohol. (38) The early twentieth century versions of the exclusionary rule in the states, consistent with the federal rule and unlike their nineteenth century predecessors, were not specific to liquor enforcement. (39)

   Certainly federal courts, first with the opinion in Boyd v. United States (40) and then more clearly in Weeks v. United States, (41) fashioned a version of the exclusionary rule in federal prosecutions prior to...