[This series of posts is based on Richard Re’s forthcoming Harvard Law Review article, The Due Process Exclusionary Rule/.]

In my previous post, I sketched an argument for the exclusionary rule rooted in due process — specifically, in the notion of due process as adherence to separately codified positive law, including the Fourth Amendment. In this post, I’d like to describe a few advantages that come with this approach, as compared with the Court’s cost/benefit analysis.

First, the due process exclusionary rule is more tightly linked to the Constitution’s text. As the Court and commentators have observed, the words of the Fourth Amendment do not address the admissibility of evidence at trial, but instead prohibit certain searches and seizures that occur outside of court. In that respect, the Fourth Amendment is unlike the Self-Incrimination Clause or the Confrontation Clause, which do expressly address the admissibility of evidence in the form of being a “witness.” In speaking of a right of the “people,” the Fourth Amendment more closely resembles the First Amendment and other provisions that are generally remedied through civil process — that is, actions for damages or injunctions. And, in fact, the Fourth Amendment often plays that role even today.

By contrast, the Due Process Clauses do pertain to trials and resulting deprivations. A conviction without due process is therefore a separate constitutional violation. Imagine for example that a federal defendant is denied a jury trial in a criminal case. That event would infringe the defendant’s Article III and Sixth Amendment rights to a jury. If the defendant were then convicted, the resulting deprivation would work an additional violation — this time, of due process. The same reasoning applies to the Fourth Amendment. An unreasonable search outside of court violates the Fourth Amendment. And if the fruits of that search supply the legally necessary basis for conviction, then a separate due process violation occurs.

Second, only the due process exclusionary rule can help explain the harmless error doctrine. Currently, harmless-error analysis is generally viewed as a common law doctrine or the product of federal rules, but that raises the troubling possibility of legislative override. For example, could Congress provide that persons convicted in violation of the Constitution are entitled only to money damages, not reversal of their convictions? Moreover, the Supreme Court may lack authority to foist federal harmlessness standards on States, if those standards lack a constitutional basis. The better view is that the Due Process Clauses guarantee that “harmful” procedural errors necessitate the termination of ongoing, unlawful deprivations.

Finally, focusing on due process explains many fundamental and longstanding features of exclusionary doctrine — including features that are hard to square with the Court’s cost/benefit reasoning. Let me give just one example here. Where the exclusionary rule applies, the Court has never suppressed anything more than the illegally discovered evidence. That hard cap on the extent of exclusionary remedies is intuitive from a due process standpoint, but makes very little sense if the rule is primarily meant to deter police misconduct. Whenever the police misconduct is too rampant or too often undetected, a proponent of deterrence should be ready to entertain the possibility of excluding more than what was wrongfully found.

In my last post, I’ll bring the discussion full circle by exploring the relationship between the due process exclusionary rule and the proposed good-faith exception.

The views set forth in these posts are the personal views of the author and do not necessarily reflect those of the law firm with which he is associated.