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Exclusionary Rule - Costs and Viable Alternatives

NCJ Number
Criminal Justice Ethics Volume: 1 Issue: 2 Dated: (Summer/Fall 1982) Pages: 16-27
M R Wilkey
Date Published
12 pages
To remedy the undesirable consequences of the exclusionary rule, new legislation should provide for an effective separate disciplinary system for Federal law enforcement agencies, a meaningful civil tort claim remedy for all victims of illegal searches, and the abolition of the exclusionary rule as applied to material evidence.
As the sole means for dealing with illegal searches and seizures, the exclusionary rule not only can lead to the acquittal of guilty persons but fails to provide remedies for innocent victims of illegal police action. There are a number of promising alternatives to the exclusionary rule. The first and most logical alternative would be to adopt a system under which the executive branch disciplines itself, so that the judiciary need not intervene in every instance of an alleged violation. The preferred approach would be the establishment of a disciplinary agency in the executive branch to investigate, try, and punish the misdeeds of enforcement officials. Second, a tort remedy should be created to provide victims of searches and seizures a claim remedy against erring police officers. A third alternative would be provision for a minitrial of the alleged offending officer after the trial of the accused for the charged crime. If a motion charging the officer with an illegal search were made, the trial judge would reserve judgment on that extraneous matter until the guilt or innocence of the accused had been established, based on all the evidence presented, including that obtained in the alleged police misconduct. The receipt of the evidence in question would be conditioned on the holding of a hearing regarding the alleged violation. Should the officer be found guilty of misconduct, the retention of the evidence's admissibility would depend upon the officer's being appropriately disciplined. Should such disciplining not be implemented, the evidence at issue would then be excluded by the court. Thirty-nine notes are provided. For related material, see NCJ-92355.


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