73. Comparing exclusionary rules

Lawyers, myself included, tend to use the phrase "exclusionary rule" as if there were only one.  There are in fact many exclusionary rules.  In a certain sense most of the rules of evidence are exclusionary rules: they exist to define what relevant evidence should be concealed from juries.  (See post26.)  But when lawyers use the phrase we're generally referring to the three distinct exclusionary rules that are recognized aspects of constitutional law.

The Constitution - that is, the actual text - contains just one exclusionary rule, though it stops short of being explicit.  The fifth amendment's self-incrimination clause says that "No person ... shall be compelled in any criminal case to be a witness against himself".    The word "witness" could be interpreted to mean "witness at a trial."  That would mean that no accused person could be compelled to sit down in the witness chair in front of the jury, take the oath, and submit to questioning under penalty of perjury.  But if that's all the clause meant, we would have scenes like this:

Prosecutor:  Officer, what color shirt was the defendant wearing?

Witness:  Um, I forget.

Prosecutor:  Would it refresh your memory if you had a few moments in the jury room alone with the defendant?

Witness:  Most likely, yes.

[Witness and defendant disappear into jury room.  There is a sound of thumps, shrieks of pain, sobbing, and finally a low mumble.  The witness returns to the courtroom and resumes the witness chair.  The defendant hobbles back to his seat, supported by the tipstaff.]

Prosecutor: Has that refreshed your memory, officer?

Witness:  Yes.  It was a purple Tommy Hilfiger shirt.

No, to have any meaning the word "witness" must mean something closer to the King James Bible's translation of the ninth commandment, the one about bearing witness against one's neighbor.  Even if the cop beats a confession out of a suspect, the confession can't be used to prove the suspect's guilt.

The prohibition on extracting confessions through torture has both moral and practical justifications.  Morally, it's just wrong for a government to torture, for exactly the same reasons that it's wrong for a private person to torture, plus a few more having to do with politics, good government and that kind of thing. 

And, as a practical matter, torture is of limited use.  In Faith of My Fathers, John McCain describes the hospital interrogations he underwent immediately after his capture by the North Vietnamese.  When tortured to give names of his comrades, he named the offensive line of the Green Bay Packers.  His interrogators, of course, had no knowledge base on which to evaluate the validity of the name "Jerry Kramer" (that itty-bitty little pre-steroids guy - check out his cover photo). 

The recent "debate" about torture, including Charles Krauthammer's notorious column, rest on the premise that you can obtain truthful information by torture, even when the tortured person knows he only has to endure a single hour and it will take his interrogators longer than that to determine if the information he provides is accurate.  Does anyone seriously believe that?

Seymour Hersh's expose of the second-generation Abu Ghraib abuses - those committed by Americans, rather than those previously committed by Saddam's goons - contained this quote:

The mistreatment at Abu Ghraib may have done little to further American intelligence, however. Willie J. Rowell, who served for thirty-six years as a C.I.D. agent, told me that the use of force or humiliation with prisoners is invariably counterproductive. “They’ll tell you what you want to hear, truth or no truth,” Rowell said. “ ‘You can flog me until I tell you what I know you want me to say.’ You don’t get righteous information.”

Hersh's "invariably" is doubtless an exaggeration - there's variation in every human activity, including resistance to torture - but the general point is borne out every day by police interviews.  A cop's fatherly, nonjudgmental manner, extending an invitation to an intense discussion about the suspect's deepest feelings - in short, an approach that bears more than a passing resemblance to therapy - was the key to all of the most devastating taped confessions I've ever listened to.

In 1886, the Supreme Court ruled that examining a crooked businessman's ledger was equivalent to beating a confession out of him, and therefore evidence seized in violation of the fourth amendment should be treated just like confessions extracted by torture.  That reasoning had an unfortunate shortcoming, which was that it made no sense at all.

Sending bank examiners into a bank is different from putting the bank manager on the rack in two significant ways.  First, reading a ledger is not in itself a morally repugnant activity.  That's why accountancy has generally been considered a more respectable profession than hangman.  Second, the information obtained by the bank examiner's review is highly reliable.  Either it accurately records the bank's operations, or, if it doesn't, it proves that the people in charge of the bank are too incompetent or dishonest to be be trusted with anyone else's money.

The absence of any moral justification is the very essence of the fourth amendment exclusionary rule.  This point is obscured by the lavender-scented rhetoric favored by judges, who talk about "principles of humanity and civil liberty which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity" and "the cherished expectation of privacy in the home" and "the precious interest of privacy summed up in the ancient adage that a man's house is his castle".  (See post 30 and post 35.) 

The very point being made by the justices who wrote these words was precisely that disrupting the cherished expectation of privacy is abhorrent only if it wasn't approved ahead of time by a judge.   The same police action can be either abhorrent or copasetic, depending on whether it was approved by a blue-collar working stiff or by a highly-educated member of the governing class. 

The interest being protected by such decisions is not the homeowner's privacy, which is extinguished either way, but the court's own authority, and secondarily the bureaucratic imperative that procedures be followed - important matters, to be sure, but hardly moral principles of universal application.  No one, not even Krauthammer, says sodomizing prisoners or forcing their faces into urine is perfectly all right as long as a judge signs a warrant first.

The lack of a practical justification for the fourth amendment exclusionary rule is even clearer than the lack of moral basis.  Justices Black and Powell made the point this way:

"A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty."

Whether the gun seized from your bedside table is the murder weapon depends on ballistics tests, not on whether the officer had a warrant before he seized it.

The fifth amendment exclusionary rule has both moral and practical justifications, while the fourth amendment exclusionary rule has neither.   Could this be one reason why the former can be found in the Constitution and the latter can't?

Comments

[me-mo]

1) I agree with your assessment of the Leon "good faith" exception to the 4th Amendment. However, I would come to different conclusion. If the violation is caused by cop or judge, the harm is the same and the remedy should be the same; exclude the tainted fruit.

2) Of the manys reasons for the exclusionary rule, one is to prevent the government from securing the aid of the judiciary in giving effect to Fourth Amendment violations and to protect the judiciary itself from committing a Fourth Amendment violation by admitting tainted evidence. Explaining these interrelated justifications for the exclusionary rule, the Supreme Court stated:

But there is another consideration - the imperative of judicial integrity. It was of this that Mr. Justice Holmes and Mr. Justice Brandeis so eloquently spoke in [Olmstead v. United States (1928) 277 U.S. 438, 469-471], more than 30 years ago. "For those who agree with me," said Mr. Justice Holmes, "no distinction can be taken between the Government as prosecutor and the Government as judge." [Ibid.] Elkins v. United (1960) 364 U.S. 206, 222-223

The Elkins court then continued on the subject of judicial integrity:

This basic principle was accepted by the Court in [McNabb v. United States]. There it was held that "a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law." [McNabb v. United States (1943) 318 US 332, 345] Even less should the federal courts be accomplices in the willful disobedience of a Constitution they are sworn to uphold. Elkins v. United (1960) 364 U.S. 206, 223.

This view of “judicial action” and “judicial integrity” is clearly present in violations of the Fourteenth Amendment. In Edmonson v. Leesville Concrete Company, Inc. (1991) 500 U.S. 614, the Supreme Court held that a private litigant in a civil case may not use peremptory challenges to excludes jurors on account of their race, the Edmonson court held:

A private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the “final and practical denial” of the excluded individual’s opportunity to serve on the petit jury. [Citation omitted]. With the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. Id. at 624.

[MF]

You really think the fourth amendment exclusionary rule has NO practical justification?? It does deter the police from barging into our houses without probable cause. That certainly makes me feel better.