The Exclusionary Rule has been the topic of a major debate within the United States’ justice system. In its essence, the rule “prevents the use of evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure” (Rosenthal, 2013, p. 523). Major debates surround the necessity of the Exclusionary Rule itself; however, even more controversy is generated by the exceptions to the exclusionary rule, which are sometimes poorly defined and thus hardly well-grounded.
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Whether or not exceptions to the Rule should be allowed at all is a difficult question to answer. On the one hand, in the vast majority of cases, the law enforcement agencies have limited access to the accused person’s information and possessions, and there is no way to obtain evidence other than by violating the suspect’s privacy. On the other hand, the United States Constitution clearly defines the Fourth Amendment rule, which protects the people’s rights to privacy and states that these rights are not to be violated. In my opinion, exceptions to the Exclusionary Rule should only be made in the few cases where there is no other way to obtain evidence and only on the grounds of the probable cause, supported either by victim’s or witness’ words or by past cases, in which the subject was involved. Moreover, not all of the exceptions are equally valid to be used in court.
For example, the use of the inevitable discovery rule may allow using illegally obtained evidence in court on the basis that the user proves that this evidence would have been discovered legally during the investigation process. In this case, an exception is granted based mostly on the party’s use of rhetoric in building a believable narrative (Brooks, 2017). The reliability of the actual story is, therefore, easy to question, as there is no way to prove whether or not the evidence would indeed be obtained legally at some point during the investigation. Moreover, it can also create an inequity between the defense and the prosecution, as different people might present the same piece of evidence differently based on their own rhetorical abilities, thus either gaining an exception or not.
Another controversial example on the use of exceptions to the Exclusionary Rule is the good faith argument. As noted by Freiwald (2013) the good faith exception is one of the most commonly used in the United States and one that seems to be relatively easy to prove in court. For instance, even though “The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment” (Freiwald, 2013), in the 2011 case of Davis v. United States, a new exception was laid out, which admitted that officers who engaged in warrantless GPS tracking operated in good faith (Mason, 2012). Due to the fact that the good faith exception clearly creates an opportunity for contradictions within the U.S. justice system, there has to be a structured approach to the use of this exception.
Finally, another exception that can result in bias and unfairness is the independent source doctrine, which provides that both the defense and the prosecution may avoid the Fourth Amendment if they can prove that evidence was obtained from an independent source. Clancy (2013), for instance, argues that “A significant limitation on the application of the exclusionary rule is the independent source doctrine, which permits the introduction of evidence that is not causally related to the Fourth Amendment violation” (p. 389). Indeed, one of the reasons as to why this exception may be ungrounded is that it is difficult to determine whether or not evidence was obtained from a source that is not connected to the investigation, which means that the exception may be granted based on a claim that is untrue.
Overall, I agree that, in all of the cases, exceptions to the Exclusionary Rule facilitate the violation of the Fourth Amendment (Slobogin, 2013), thus undermining the person’s constitutional rights to privacy and questioning the reliability of the entire system. I believe that the only circumstances under which constitutional violations should be allowed are when severe charges are pursued by the prosecution and given that there is no legal way to obtain the necessary evidence, despite the fact that the investigation points to the suspect’s guilt. For instance, I would allow the investigators to lie to a subject during an investigation of large-scale corruption and financial machinations, as, in this case, substantial evidence might only be available through the channels that violate the normal investigation procedures.
Brooks, P. (2017). Clues, evidence, detection: Law stories. Narrative, 25(1), 1-27.
Clancy, T. K. (2013). The Fourth Amendment’s Exclusionary Rule as a constitutional right. Ohio State Journal of Criminal Law, 10(1), 357-391.
Freiwald, S. (2013). The Davis good faith rule and getting answers to the questions Jones left open. North Carolina Journal of Law & Technology, 14(2), 341-379.
Mason, C. (2012). New police surveillance technologies and the good-faith exception: Warrantless GPS tracker evidence after United States v. Jones. Nevada Law Journal, 30(1), 60-94.
Rosenthal, L. (2013). Seven theses in grudging defense of the Exclusionary Rule. Ohio State Journal of Criminal Law, 10(2), 523-566.
Slobogin, C. (2013). The Exclusionary Rule: Is it on its way out? Should it be? Ohio State Journal of Criminal Law, 10(2), 341-355.