I’m delighted to report that Richard Re will be guest-blogging next week about the exclusionary rule, and in particular about his forthcoming Harvard Law Review article on the subject, The Due Process Exclusionary Rule. I read the article, and — as someone who is unsure what to think about the exclusionary rule — I found it extremely interesting. Here’s the abstract (paragraph breaks added):
As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity.
Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses.
By the mid-twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process.
This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.
As the article puts it,
Viewing the [exclusionary] rule as a function of due process takes the sting out of then-Judge Cardozo’s famous lament that “[t]he criminal is to go free because the constable has blundered.” Our system takes it for granted that criminals must sometimes go free because legislatures, prosecutors, or judges have blundered, and that same due process principle applies to official investigators. In different ways and circumstances, all these government actors are constrained by constitutional procedure.
I much look forward to Richard’s visit.