Wednesday, May 07, 2003

Matthew Yglesias complains about the exclusionary rule:
I'm always disatisfied with the results of these exclusionary rule cases. It seems to me that under circumstances like this, you have two guilty parties: a guy who murdered a girl and a cop who violated the constitution. Faced with two guilty parties, my feeling is that both men should go to jail. Instead, the upshot of the exclusionary rule is that neither will go to jail. It's possible, of course, that the police will find evidence that's not "fruit from the poison tree," in which case a conviction will be secured, but then again they may not. At any rate, it seems to me that actually punishing cops for misconduct (harshly, one would hope) would be a better guarentee of the rights of the accused than would the exclusionary rule, which de facto punishes society at large for the wrongdoing of one (or a few) people.
Yglesias is in good company. Namely, Judge Cardozo, who famously wrote that under the exclusionary rule, "The criminal is to go free because the constable has blundered." New York v. Defore, 242 N.Y. 13, 21 (1926). Cardozo went on to note "how far-reaching in its effect upon society" the exclusionary rule would be when "[the] pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious." Id. at 23.

Also, a plurality opinion in Irvine v. California, 347 U.S. 128, 136 (1954), made a similar complaint:
Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.


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