Chapter 9 The Exclusionary Rule

THE EXCLUSIONARY RULE (OR THE RULE OF THE EXCLUSION OF EVIDENCE) The exclusionary rule excludes evidence that was improperly or illegally obtained. The exclusionary rule seeks to discourage improper or illegal investigative procedures by law enforcement officers. Some law enforcement conduct is improper because it adversely affects a criminal defendant’s statutory or constitutional rights, such as the right to due process!

In Hudson v. Mich (2006), the Supreme Court found that while a defendant might want a longer period between “knock and announce” and entry in service of a warrant, law enforcement would discover evidence anyway. The Court stated that individuals have no right to try to destroy evidence. It also determined that the exclusionary rule was inappropriate for “knock and announce” violations.

The principal U.S. Constitutional rights threatened by police misconduct are the Fifth and the Fourth Amendments. Other constitutional protections are secured for both federal and state defendants under the due process clauses of the Fifth & Fourteenth Amendments

Case Law—Exclusionary Rule For much of U.S. history, relevant and reliable evidence was admissible in criminal prosecutions even if obtained illegally. Beginning in 1914 (Weeks v. U.S.), in federal cases and 1961 in state cases (Mapp v. Ohio), the U.S. Supreme Court required courts to exclude such evidence—that is, declare the evidence inadmissible to help prove the prosecution’s case.

THE EXCLUSIONARY RULE (OR THE RULE OF THE EXCLUSION OF EVIDENCE) (Cont The U.S. Supreme Court has also used the exclusionary rule for violations of court-fashioned rules, like the famous Miranda rule. In the Miranda case, the Supreme Court adopted a court rule for determining the minimum safeguards that must be used by police before obtaining a confession or other incriminating statements. If these safeguards are not met, any resulting confession or incriminating statement is inadmissible.

THE “FRUIT OF THE POISONOUS TREE” DOCTRINE (OR THE DERIVATIVE EVIDENCE RULE) The exclusionary rule applies not only to evidence obtained indirectly as a result of improper police conduct but also to evidence obtained indirectly from that improper conduct. Evidence derived from initial improper conduct is usually called: Fruit of the Poisonous Tree

THE “FRUIT OF THE POISONOUS TREE” DOCTRINE (OR THE DERIVATIVE EVIDENCE RULE) The “fruit of the poisonous tree” doctrine is applicable if improperly or illegally obtained evidence is the basis for discovery of: Other evidence that otherwise would not have been found A witness who otherwise might not have been found A confession or incriminating admission that would not have been made if the suspect or defendant had not been confronted with the tainted (soiled) evidence

EXCEPTIONS TO THE “FRUIT OF THE POISONOUS TREE” DOCTRINE The derivative evidence rule, as the name suggests, applies only if the challenged evidence is directly and exclusively derived from the improper police conduct. The U.S. Supreme Court has developed three exceptions to the doctrine in those situations:

1. The Independent Source Doctrine Improper police conduct may lead to the discovery of evidence, while at the same time, another, proper source may lead to the same evidence. If the second, proper source of the evidence is independent—that is, not tainted by the improper conduct—the evidence is admissible.

EXCEPTIONS TO THE “FRUIT OF THE POISONOUS TREE” DOCTRINE (Cont.) 2. The Inevitable Discovery Rule If police error or police misconduct has tainted some evidence, the evidence and also derivative evidence will be suppressed and cannot be used in a criminal trial. If it can be shown that the challenged derivative evidence would have certainly been discovered by legitimate police efforts, it would be admissible.

3. The Attenuation, or “Passage of Time” Rule Where improper police conduct occurs and shortly thereafter the conduct leads to the discovery of other evidence, the poisonous tree doctrine reasonably concludes a connection exists between the improper conduct and the other evidence. Where a significant period of time goes by between the improper conduct and the new evidence, the U.S. Supreme Court has long held that the “taint” from the improper conduct can be dissipated.

MANY STATES NOW HAVE TWO SETS OF EXCLUSIONARY RULES All states must follow the federal Mapp (Mapp v. Ohio) rule in determining the admissibility of evidence. It is not uncommon for state courts to impose additional requirements in interpreting the Constitution or statutes of the state. State statutes, by themselves, could also alter the federal Mapp rule and impose a stricter standard in a given area of the law.

MANY STATES NOW HAVE TWO SETS OF EXCLUSIONARY RULES (Cont.) The federal rule is defined by the U.S. Supreme Court and other federal courts while the state exclusionary rule is defined and required by the state supreme court (and sometimes by state statutes). Evidence to be used in criminal cases in federal courts in all states would be judged by the federal Mapp rule. Some states have simplified this situation by eliminating, to a large extent, their state exclusionary rule.

Many states have enacted sections to their state constitutions requiring state courts in that state to determine the admissibility of evidence. In conformity with the 4th Amendment as interpreted by the U.S. Supreme Court

Should There by Changes, Major or Minor, in the American Exclusionary Rule? Some U.S. Supreme Court justices are not happy with the present scope of the exclusionary rule because it causes the suppression of almost all evidence obtained by police misconduct (whether slight or serious), without regard to seriousness of crime or the value of the evidence.

No other democratic nation in the world has a rule that requires automatic suppression of all evidence obtained by police misconduct.