NCJ Number
147516
Journal
Journal of Criminal Law and Criminology Volume: 84 Issue: 2 Dated: (Summer 1993) Pages: 310-351
Date Published
1993
Length
42 pages
Annotation
The exclusionary rule is discussed.
Abstract
Although the constitutional authority for the exclusionary rule presents a genuine problem, this article contends that there is a way to save the exclusionary rule that has passable support in the case law from Mapp v. Ohio to the present. This article defends Professor Kaplan's contingent exclusionary rule theory against concerns as to the logic of contingent constitutional commands and fills in a gap in his discussion regarding the constitutional source of the rule. That source, argues the author, is best understood as an enforcement clause, sensitive to contingencies, implicit within the Fourth Amendment itself. So amplified, this theory of the exclusionary rule is the best candidate for saving the rule on the continuing underlying assumption that the Burger and Rehnquist Courts' exclusionary rule jurisprudence should not be eliminated entirely. Included in the article's discussion are the Mapp case and subsequent cases, constitutional stare decisis as set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, the contingent violation theory, the nature of the enforcement clause, and other ways to save the exclusionary rule. Although the author argues that his solution is the best one to save the exclusionary rule, he is only reservedly enthusiastic about its potential.