The American Exclusionary Rule

• Author: Yue Ma
• DOI: 10.1177/1057567712457944
• Published date: 01 September 2012
• Date: 01 September 2012
• Subject Matter: Articles

The American Exclusionary

Rule: Is There a Lesson to

Learn From Others?

Yue Ma

1

Abstract

When the U.S. Supreme Court extended the application of the exclusionary rule in its landmark

decision Mapp v. Ohio, it was leading the way in employing the exclusionary remedy as a means to

protect people’s rights against unreasonable searches and seizures. The past 50 years have seen

significant changes in the criminal justice landscape on the world scene. The exclusionary rule is no

longer unique to American jurisprudence. The rule has been adopted by other Western countries as

well. The American exclusionary rule, however, remains a unique rule in terms of its deterrence

rationale and mandatory nature. No other countries have adopted a mandatory rule or rested the

rule on its deterrent effect. This article discusses the operation of the exclusionary rule in four other

countries and provides a comparative analysis of the American exclusionary rule. It analyzes the

problems associated with the operation of a deterrence-based mandatory rule and explores

the possibility of changing the American exclusionary rule from a mandatory to a discretionary rule.

The analysis takes note especially two recent U.S. Supreme Court decisions that signal significant

changes in the application of the exclusionary rule in the United States.

Keywords

comparative crime/justice, Western Europe comparative crime/justice, courts/law, legal issues

courts/law, North America

Introduction

The Fourth Amendment exclusionary rule requires exclusion of evidence obtained as a result of

official lawlessness. Fifty years ago, the U.S. Supreme Court in its landmark decision, Mapp v. Ohio

(1961), gave prominence to the rule by elevating it from a federal rule of evidence to a constitution-

ally required rule and extending its application to all jurisdictions in the United States. The Mapp

decision generated much debate and controversy. The rule aimed at excluding probative evidence

because of the manner in which it was obtained was characterized as ‘‘unique to American jurispru-

dence’’ (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, Burger, C. J.,

1

John Jay College of Criminal Justice, New York, NY, USA

Corresponding Author:

Yue Ma, John Jay College of Criminal Justice, 899 Tenth Avenue, New York, NY 10019, USA

Email: yma@jjay.cuny.edu

International CriminalJustice Review

22(3) 309-325

ª2012 Georgia State University

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DOI: 10.1177/1057567712457944

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dissenting 1971) and criticized as irrational because ‘‘no civilized nation in the world has adopted it’’

(Wilkey, 1978).

Historically, in both common and civil law traditions there were rules against admission of

coerced confessions. But the rule governing admissibility of physical evidence was one of relevancy.

The English common law knew no notion of excluding probative evidence. Relevant evidence was

admissible regardless of the manner in which it was obtained (Williams, 1955; Zuckerman, 1989).

On the European continent, despite the existence of isolated cases in which evidence obtained as a

result of official lawlessness was excluded there was no established practice of excluding relevant

evidence based on any clearly articulated rationale (Pakter, 1985). The past several decades have

seen significant changes in the criminal justice landscape on the world scene. With the rise of indi-

vidual rights as a proper subject of international law, there has been a global trend in the direction of

providing more protections to the accused.

Amid these developments, more and more countries have adopted the exclusionary rule aimed at

excluding evidence obtained as a result of official lawlessness. Today, the exclusionary rule exists in

England and Wales, France, Germany, Italy, Canada, Australia, and even in China and Russia

(Amann, 2000; Bradley, 1983, 1993, 2007; Cho, 1999, 2001; Hatchard, Huber, & Vogler 1996; Jaini

& Noyes, 2001; Lewis, 2011; Orland, 2002).

The exclusionary rule though is no longer an American novelty, the American rule is still unique

because of its mandatorynature and deterrence rationale. In Mapp, the SupremeCourt justified the rule

on several grounds. In subsequent years, the Court has justified the rule exclusively on its deterrent

effect. Moreover, except for situations coveredby exceptions carved out by the Court,the rule requires

automatic exclusion of all illegally obtained evidence. By contrast, no other countries have adopted a

generallyapplicable mandatoryrule or rested the rule on its effectas a deterrentagainst police illegality.

While the debate over the exclusionary rule never abates, two recent Supreme Court decisions

have triggered a new storm of controversy. In Hudson v. Michigan (2006), the Court rejected the

application of the exclusionary rule to police violation of the knock-and-announce rule and declared

that suppression of evidence ‘‘has always been our last resort, not our first impulse’’ (Hudson, p.

591). In Herring v. United States (2009), the Court extended the good faith doctrine to cover illegal

searches by police in reliance on a record-keeping error committed by another police employee. The

Court reasoned that to trigger the exclusionary rule, ‘‘police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system’’ (Herring, p. 144).

Hudson and Herring are controversial not only because the two decisions further constricted the

domain of the exclusionary rule but also because the decisions herald a significant change in the

Court’s Fourth Amendment jurisprudence. The Court’s advocacy of a police culpability-based

approach suggeststhat the Court is ready to rethink how the exclusionary rule shouldbe applied. Hud-

son and Herring are hardly the Court’s last word on the Fourth Amendment exclusionary rule. The

Court will hand down more decisions to further clarify theapproach it suggested in the two decisions.

In anticipating more debate on the exclusionary rule, it is helpful that we evaluate the rule’s

application in the United States in comparison with the operation of the exclusionary rule in other

countries. The United States has long taken a self-centered approach in the study of criminal pro-

cedure. In today’s rapidly shrinking world, it is time that we look to other countries’ experience in

contemplating our own law reform. This article provides a comparative perspective of the exclu-

sionary rule. It evaluates the American exclusionary rule in comparison with the exclusionary rule

in England, Canada, France, and Germany. The introduction of the exclusionary rule in the four

countries provides readers with an overview of the rule’s operation in countries that follow the

common and the civil law traditions. More attention will be given to the practice in England and

Canada, for the two countries’ experience stands to provide more inspirations to our exclusionary

rule debate.

310 International Criminal Justice Review 22(3)