THE EXCLUSIONARY RULE REDUX — AGAIN

Lloyd L. Weinreb, Harvard Law School

Abstract

This is a working draft, please do not cite or distribute without the author's permission.

According to whether one starts counting with Weeks, decided in 1914, or Mapp, decided in 1961, we are closing in on 50 or 100 years since the exclusionary rule was made part of Fourth Amendment jurisprudence. One would have thought that was more than enough time for the Supreme Court to have clarified what the rule is about and whether it is worth having. In broad outline, at any rate, the rule is not very complicated: simply that if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision has been extended to violations of other constitutional rights and freighted with innumerable epicycles, and epicycles on epicycles, but it is at bottom straightforward. Clarification has not happened. Instead the exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness like “separate but equal” and, in criminal procedure, the right to counsel before formal proceedings have begun. It survives, but its reach is uncertain, its rationale questioned, and its value doubted.