The Exclusionary Rule and Judicial Integrity: An Empirical Study of Public Perceptions of the Exclusionary Rule.

• Author: Kim, Matthew D.

ABSTRACT 1061 TABLE OF CONTENTS 1062 I. INTRODUCTION 1063 II. THEORETICAL FOUNDATION 1068 A. The Case for the Exclusionary Rule 1068 B. The Case Against the Exclusionary Rule 1073 C. The Good Faith Exception 1078 D. Alternative Remedies 1079 E. The Exclusionary Rule in Other Countries 1082 III. RESEARCH DESIGN AND HYPOTHESES 1085 A. Research Questions 1085 B. Survey Methodology 1086 C. Hypotheses 1096 D. Assumptions and Limitations 1097 IV. RESULTS AND RAMIFICATIONS 1099 A. The Case for the Exclusionary Rule 1099 B. The Good Faith Exception or Not 1100 C. The Selective Application of the Exclusionary Rule 1102 D. Administrative Proceedings 1106 V. CAUSAL MECHANISMS 1107 VI. RAMIFICATIONS 1111 VII. CONCLUSION 1114 VIII. APPENDIX A: SURVEY TEXT 1118 A. Experiment 1 1118 B. Experiment 2 1120 C. Experiment 3 1122 D. Experiment 4 1124 IX. APPENDIX B: TABLES AND REGRESSION MODELS 1127 I. INTRODUCTION

The exclusionary rule renders any evidence that law enforcement gathered through improper police procedure inadmissible at trial. Throughout the world, several court systems have applied the exclusionary rule due to a legislative mandate or as a court-imposed remedy. (1) In the United States, the exclusionary rule is a court-imposed remedy that prohibits prosecutors from using evidence obtained in violation of the Fourth, Fifth, and Sixth Amendments in their case-in-chief. (2)

The historical justification for the exclusionary rule focused on the public's perception of the courts. (3) In the first U.S. Supreme Court case on the exclusionary rule, Weeks v. United States, the Court suppressed unlawfully obtained evidence in order to preserve judicial integrity. (4) The Court reasoned that not suppressing illegally obtained evidence would undermine the public's view of the integrity of the court system by creating the appearance that the courts were approving illegal acts and openly defying the U.S. Constitution. (5) The Court and legal scholars have since reiterated that the purpose of the exclusionary rule was preserving judicial integrity. (6) More recently, the late Justice Ruth Bader Ginsberg wrote in her dissenting opinion in Herring v. United States that the exclusionary rule should be applied on a more general basis rather than as a "last resort" because the original "majestic conception" of the exclusionary rule was in preserving judicial integrity in the eyes of the public. (7)

Since Weeks, however, many have argued against the exclusionary rule, claiming that the suppression of probative evidence due to a seeming legal technicality actually undermines judicial integrity. (8) According to critics of the exclusionary rule, the public's trust in the court system is threatened when judges exclude evidence that would otherwise help courts fulfill their truth-finding function. (9) This is especially true when the reliability or "truthfulness" of the evidence to be excluded is not threatened by the illegal search or seizure--such as the proverbial bloody knife obtained through an illegal search or seizure--but unlike a confession coerced through psychological or physical torture. (10) The concern is that judicial integrity suffers when reliable, credible evidence of wrongdoing is excluded and the factually guilty defendant is unpunished because of improper police conduct, especially when the reliability of the evidence is not affected by police misconduct. Rather than promoting judicial integrity, the exclusionary rule threatens judicial integrity in such instances since "[t]he criminal is to go free because the constable has blundered." (11)

The Supreme Court, too, eventually questioned whether the exclusionary rule promoted judicial integrity--because the rule undermined the truth-finding function of the courts--and increasingly relied on deterrence of police misconduct as another justification for the rule. (12) However, after the Court's most recent decisions discrediting the police deterrence rationale, the rule is in a period of existential crisis. (13) Whether the exclusionary rule promotes or undermines judicial integrity is therefore of renewed importance as the only other widely recognized justification for the rule. (14)

The problem lies in the fact that both proponents and critics of the exclusionary rule claim that the rule promotes or undermines public perceptions of the integrity of the court system to argue for their diametrically opposed views. (15) As the Court heads toward an "apparently inevitable contest" to determine whether the exclusionary rule should continue to regulate police misconduct, resolving this empirical question is critical to the future of the exclusionary rule. (16) Using a series of public opinion survey experiments, this article seeks to demonstrate empirically whether the exclusionary rule does, in fact, promote or undermine the public's view of the court system.

This article also explores whether the good faith exception promotes or undermines judicial integrity. The good faith exception is a controversial exception to the exclusionary rule that allows evidence gathered illegally to be admitted at trial if the police officer's misconduct was in good faith. (17) The justification for the good faith exception similarly lies in judicial integrity--that is, in the public's aversion to seeing otherwise probative evidence being suppressed at trial due to an honest mistake. (18) Critics of the good faith exception argue, however, that the exception allows courts to admit illegally obtained evidence and thereby undermines the public's trust in the court system. (19) Therefore, this article--in part--examines the impact of the good faith exception on the public's perception of judicial integrity.

In addition, there exist several proposed alternatives to the exclusionary rule, which have been implemented in varying degrees. (20)

These alternatives include the selective application of the exclusionary rule depending on the severity of the alleged crime and the degree of police misconduct, as well as administrative proceedings for police misconduct. (21) This article examines the public's view of various alternatives in order to determine whether these alternatives increase or decrease the public's confidence in the court system relative to the status quo.

Finally, the article examines whether the exclusionary rule promotes or undermines judicial integrity outside of the United States. Many countries adopted the exclusionary rule in the process of establishing a liberal democracy, and scholars argue that those countries implemented the exclusionary rule because of the belief that the exclusionary rule would allow courts to constrain law enforcement from abusing its power and thereby promote judicial integrity. (22) This article selected South Korea as a case study to explore this issue, alongside the United States, because South Korea is an emerging liberal democracy that adopted the exclusionary rule for those reasons.

Overall, this article finds that the exclusionary rule promotes judicial integrity in the United States but undermines judicial integrity in South Korea. Although there are variations in the degree of judicial integrity gained or lost through the application of the exclusionary rule depending on the severity of criminal and police misconduct, the overall trends remain the same. Americans generally support the application of the exclusionary rule, and South Koreans generally oppose it. This finding, however, does not necessarily mean that the U.S. exclusionary rule should be safeguarded or that the South Korean exclusionary rule should be repealed, as there are normative questions about whether public opinion alone should dictate the application of the exclusionary rule. Instead, this article's findings suggest how courts, scholars, and practitioners can best justify the exclusionary rule as it careens toward an existential crisis. This article provides timely empirical evidence for the most promising justification for the rule in the United States and allows proponents to reclaim judicial integrity as an empirically sound justification for the rule. Meanwhile, this article's findings demonstrate why advocates of the exclusionary rule in South Korea should look to other justifications for the rule, while recognizing that the exclusionary rule, at least in the short-term, undermines judicial integrity.

This article proceeds as follows. Part II introduces the case for and against the exclusionary rule, the good faith exception, and alternative remedies. Part III introduces the research design and hypotheses. Part IV discusses the results and ramifications. Part V explores the causal mechanisms through which the application or non-application of the exclusionary rule promotes judicial integrity. Part VI discusses the ramifications of the study's findings. Part VII concludes.

2. THEORETICAL FOUNDATION

   1. The Case for the Exclusionary Rule

      What is judicial integrity? Judicial integrity is what courts have (1) when the public regards them "as a symbol of lawfulness and justice" and (2) when courts do "not appear[] to be allied with bad acts." (23) Judges and commentators mostly agree that judicial integrity is an important goal for the judiciary. (24) To elaborate, courts and commentators theorize that legal and political systems cannot operate effectively without the support of the governed and that the support of the governed requires widespread belief that the system is fair and just. (25) According to Professor David Harris:

      A system consistently seen as unjust will eventually lose the allegiance of its citizens. If people perceive the courts as less than fair decision makers, the moral force courts depend on to ensure compliance with decisions they make diminishes. (26) In other words, if courts fail to justly punish misconduct, people will lose respect for the courts, and lawlessness will spread. (27) As such, judges are generally attuned to how their decisions...