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Legally Speaking

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08/01/2011 - American law is, by international standards, a series of innovations and exceptions. This is the second in a series of articles this year that will examine commonplace aspects of the American justice system that are unique in the world.

Adam Liptak originally researched and published these articles in 2007 and 2008. With permission from The Wall Street Journal, Mr. Liptak's articles have been edited for space, and we will try to update his reports with recent statistics or rulings that may have changed the law since the articles were first published.


AMERICAN EXCEPTION US is Alone in Rejecting All Evidence if Police Err

By Adam Liptak, The Wall Street Journal, July 19, 2008

Bradley Harrison was driving from Vancouver to Toronto in 2004 with 77 pounds of cocaine in the trunk when a police officer pulled him over, found the drugs and arrested him. The officer said he stopped and searched Mr. Harrison's vehicle because he thought the front license plate was missing. An Ontario trial judge ruled that the search was not reasonable.

In the United States, that would have been good news for Mr. Harrison. Under the American legal system's exclusionary rule, the evidence against Mr. Harrison would have been suppressed as the result of an unlawful search. But Mr. Harrison was sentenced to five years in prison. The Canadian courts ruled, "the exclusion of 77 pounds of cocaine would bring the administration of justice into greater disrepute than would its admission."

The United States is the only country to take the position that police misconduct slight or serious must automatically result in the suppression of physical evidence. The rule applies without regard to the gravity of the crime or the power of the evidence.

"Foreign countries have flatly rejected our approach," said Craig M. Bradley, an expert in comparative criminal law at Indiana University. "In every other country, it's up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence." Further, opponents of the rule say even if it deters unlawful searches, exclusion of evidence offers no remedy to innocent people whose rights were violated by unlawful searches.

But, supporters of the American practice say that only strict application of the exclusionary rule can effectively address violations of the Fourth Amendment banning unreasonable searches and seizures. "The exclusionary rule deters police misconduct in a straightforward and effective way," said the National Association of Criminal Defense Lawyers in 2008. "It reduces the value of evidence obtained as a result of Fourth Amendment violations, and thus eliminates a powerful incentive for police to engage in such violations."

Several justices have in recent years questioned whether the rule still makes sense in light of what they call the increased professionalism of the police and the availability of more direct ways to punish misconduct, including internal discipline and civil suits. However, experts say criminals whose rights have been violated are not generally attractive plaintiffs, and they may not have the resources to litigate from behind bars. Civil suits must also overcome various legal doctrines limiting the liability of police officers and their employers.

The Supreme Court started requiring the exclusion of improperly obtained evidence in 1914 — but only in federal cases. It was not until 1961 that the Warren Court concluded in Mapp v. Ohio that only the mandatory suppression of evidence could adequately address wrongdoing by the police in all cases, state and federal.

In Mapp v. Ohio, seven Cleveland police officers had broken into and searched Dollree Mapp's home without a warrant. The Ohio Supreme Court concluded that the search had been unlawful, but still affirmed Ms. Mapp's conviction based on what the police found in her home. That was unacceptable to the Supreme Court. Justice Tom C. Clark wrote, "The state, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal Constitution which it is bound to uphold."

The Supreme Court has, in recent years, whittled away at the exclusionary rule by limiting its applicability and creating exceptions to it. Several justices have said the exclusionary rule has outlived its original purpose; others say the exclusion of improperly obtained evidence remains the best and most reliable deterrent against violations of citizens' Constitutional rights. In short, due to recent Supreme Court opinions, the exclusionary rule does not have nearly the effect or protection it offered in the past.


Nothing in this article should be construed as legal advice. You must consult with an attorney for the application of the law to your specific circumstances.

R. Michael Shickich is the founder of the Injury Law Firm located in Casper. The focus of his practice is personal injury and wrongful death cases.

The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.

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