Evidence Commons^™

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

All Faculty Scholarship

In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar

Articles

It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …

Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar

Articles

Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …

Dismantling The Exclusionary Rule: United States V. Leon And The Courts Of Washington—Should Good Faith Excuse Bad Acts?, Catherine Cruikshank

Seattle University Law Review

This Note will review briefly the history of the exclusionary rule under fourth amendment jurisprudence, with special emphasis given to the purposes the rule has traditionally been thought to serve. The significance of the Leon decision then will be examined in light of the emergence in Washington of an interpretation of article I, section 7 that diverges from the Supreme Court's interpretations of the fourth amendment. This Note will conclude by discussing how article I, section 7 continues to embody the several purposes traditionally served by the exclusionary rule.

Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part Ii)-Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel J. Finer

Law Faculty Articles and Essays

This Article will offer an elaboration of the idea of judicial "aggressiveness" (which Professor Stone, by and large, leaves undefined) through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard. It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness--willful deafness.

Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer

Law Faculty Articles and Essays

On July 5, 1984, the Supreme Court in Leon v. United States held that where law enforcement officials execute a search warrant issued in violation of the dictates of the fourth amendment but act in the "good faith," "objectively-reasonable" belief that the warrant was constitutionally valid, the fruits of the search should not (with a few exceptions) be excluded from evidence under the exclusionary rule. On June 8, 1983, in Illinois v. Gates, the Supreme Court, after calling for and receiving briefs and arguments on the same issue of whether the exclusionary rule should be modified, concluded, for reasons of …

Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar

Articles

Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'

Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar

Articles

Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …

Forgotten Points In The "Exclusionary Rule" Debate, James Boyd White

Michigan Law Review

Most contemporary discussions of the "exclusionary rule" assume or assert that this "rule" is not part of the fourth amendment, nor required by its terms, but is rather a judicial "remedy" that was fashioned to protect those rights (against unreasonable search and seizure) that actually are granted by the fourth amendment. The protection is said to work by "deterring" official violations; this is, however, an odd use of the word, for the rule does not punish violations but merely deprives the government of some of the benefits that might ensue from them, namely the use in the criminal case of …

Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar

Articles

[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …

Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag

Publications

No abstract provided.

How We Got The Fourth Amendment Exclusionary Rule And Why We Need It, Yale Kamisar

Articles

Why the continuing storm of controversy over the exclusionary rule? Why the deep and widespread hostility to it? I think a recent law office search case, because it arose in a setting so unlike the typical search and seizure case, furnishes a clue. In O'Connor v. Johnson, St. Paul police obtained a warrant to search an attorney's office for business records of a client suspected of making false written statements in applying for a liquor license. The attorney happened to be present when the police arrived. Holding on to his work product file, which contained some of the records sought, …

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

Articles

Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …

Criminal Procedure—Scope Of The Exclusionary Rule—Inevitable Discovery Exception Adopted, Melanie J. Strigel

University of Arkansas at Little Rock Law Review

No abstract provided.

United States V. Payner--Constriction Of The Federal Courts' Supervisory Power, Mary Rich Lewis

West Virginia Law Review

No abstract provided.

The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar

Articles

In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).

A Defense Of The Exclusionary Rule, Yale Kamisar

Articles

The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …

Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar

Articles

Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …

Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar

Articles

More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …

The Effects Of Tucker On The Fruits Of Illegally Obtained Statements, Jeffery P. Reinhard

Cleveland State Law Review

Although the Court has been careful to point out that illegally obtained statements are not admissible in the prosecution's case in chief, Michigan v. Tucker has done much to erode even that principle. In Tucker, the Court found admissible the testimony of a witness whose identity was learned solely on the basis of a statement obtained from the defendant in violation of the guidelines set forth in Miranda. Despite the Court's statement that it was significant that the interrogation preceded Miranda, and notwithstanding its reiteration of the principle that the defendant's statements would not have been admissible in the prosecution's …

The Consent Problem In Wiretapping & Eavesdropping: Surreptitious Monitoring With The Consent Of A Participant In A Conversation, Kent Greenawalt

Faculty Scholarship

The extent to which American society should permit wiretapping and electronic eavesdropping has been considered by judges, legislators and scholars for many years, although this consideration has yet to result in legal rules that respond rationally and consistently to the conflicting demands of privacy and effective law enforcement. Constitutional analysis has, until very recently, relied on concepts like "physical invasion of a constitutionally protected area," producing distinctions with little relation to underlying social values; statutory restrictions on wiretapping have been much more severe than those imposed on eavesdropping, though the latter, particularly in light of the rapidly developing technology, poses …

Controlling The Police: The Judge's Role In Making And Reviewing Law Enforcement Decisions, Wayne R. Lafave, Frank J. Remington

Michigan Law Review

We have chosen to focus here upon judicial involvement (1) in determining whether arrest and search warrants should issue and (2) in reviewing such decisions after they have been executed (and, perhaps, made) by police officials. A comparison of some recent findings respecting the actual practice at the trial level with the "ideal" as set forth in appellate opinions may allow some conclusions to be drawn both as to the present effectiveness of appellate rulings on these subjects and as to the ultimate feasibility of further implementation of those rulings. Finally, since the exclusionary rule is, theoretically at least, one …

Evidence-Hearsay-Exclusion Of Self-Serving Declarations, John M. Price S.Ed.

Michigan Law Review

One of the most venerable of all legal principles is the evidentiary rule excluding hearsay. This rule, which was first espoused by the English courts in the sixteenth century, arose when it became apparent that there was an inherent danger of untrustworthiness in a witness's uncorroborated recital of a prior declaration made outside the courtroom. The courts gave several reasons for regarding hearsay as untrustworthy. First, these statements, offered into evidence for the truth of the matter asserted, were not made under oath. Secondly, objection to such testimony was raised because the trier of fact had no opportunity to pass …

Evidence-Confessions-Admissiblity Of A Subsequent Confession Under The Mcnabb-Mallory Doctrine, Ira J. Jaffe S.Ed.

Michigan Law Review

Defendant was indicted for first degree murder and convicted of manslaughter in the Federal District Court for the District of Columbia. Defendant had willingly directed the police to the victim's body and voluntarily signed a written confession during a period of thirty-four hours detention prior to arraignment. At the arraignment defendant was informed of his rights and indicated that he was aware of them; in addition, the preliminary hearing was postponed in order to provide him opportunity to obtain counsel. Twenty hours after his arraignment the defendant once again voluntarily confessed while giving a police officer instructions as to the …

Scientific Investigation And Defendants' Rights, B. J. George Jr.

Michigan Law Review

Advances in science, medicine and industry have made much of the world a more pleasant place in which to live. In general more men are living a physically more satisfying life in more comfortable surroundings than preceding generations. But with this has come a parallel increase in criminality to the point that the term "crime wave" is heard with increasing frequency. Many crimes are facilitated in their commission by adaption or application of new scientific discoveries by criminal elements. A natural consequence is that already overburdened police departments turn as quickly as is financially possible to new scientific techniques in …

Criminal Law - Evidence - Wiretapping, James A. Park

Michigan Law Review

Suspecting that petitioner and others were violating state narcotics laws, New York police tapped petitioner's telephone pursuant to a warrant obtained in accordance with New York law. Acting upon information thus gained the police apprehended petitioner's brother. In his possession was found, not the narcotics as suspected, but alcohol without the tax stamps required by federal law. This evidence was turned over to federal authorities. Prosecution for possessing and transporting distilled spirits without tax stamps thereon followed, during which petitioner's motion to suppress the evidence obtained through the wiretap was denied. The Second Circuit affirmed the conviction, holding that although …

Judge And The Crime Burden, John Barker Waite

Michigan Law Review

One does not happily charge the judiciary with responsibility for the country's burden of crime, but the responsibility does in fact exist. Judges, though they may not encourage crime, interfere with its prevention in various ways. They deliberately restrict police efficiency in the discovery of criminals. They exempt from punishment many criminals who are discovered and whose guilt is evident. More seriously still, they so warp and alter the public's attitude toward crime and criminals as gravely to weaken the country's most effective crime preventive.

Morgan: Basic Problems Of Evidence, Alfred L. Gausewitz

Michigan Law Review

A Review of Basic Problems of Evidence. By Edmund M. Morgan.

Constitutional Law-Fourth Amendment-Exclusion Of Contraband Evidence Obtained By An Illegal Search On Premises Not Owned By Defendant, Edgar A. Strause

Michigan Law Review

The defendant was in the unlawful possession of narcotics. Having been given a key by his two aunts to their hotel room with authority to use the room at will, defendant stored the narcotics there without the knowledge of the occupants. A federal officer entered the hotel room, searched the room, and seized the narcotics during the absence of the occupants, without a search warrant. The defendant was arrested the following day and claimed ownership of the seized narcotics. He was convicted in the District Court of the District of Columbia for violation of federal law, the court refusing to …

Constitutional Law-Due Process Of Law-Freedom From Unreasonable Search And Seizure-The Admissibility Of Illegally Seized Evidence, Bernard Goldstone S.Ed.

Michigan Law Review

Local police officers entered the private office of petitioner, a practising physician, without a warrant and seized his private books and records. As a result of the information thus obtained, petitioner was convicted of conspiracy to perform an abortion. Petitioner claimed that his constitutional rights were invaded contending that due process of law under the Fourteenth Amendment includes freedom from unreasonable search and seizure and prevents the admission of illegally seized evidence, but this was denied by the Supreme Court of Colorado and the conviction was affirmed. On certiorari to the Supreme Court of the United States, held, affirmed, …