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Shields, Swords, and Fulfilling the Exclusionary Rule's Deterrent Function

NCJ Number
American Criminal Law Review Volume: 50 Issue: 1 Dated: Winter 2013 Pages: 59-108
James L Kainen
Date Published
50 pages
This article examines the consequences, both positive and negative, resulting from either the prosecution's or the defense's use of the exclusion of suppressed evidence.
The exclusionary rule allows for prosecution evidence to be suppressed at trial in order to protect defendants from police illegality. When cases proceed to trial with the existence of suppressed evidence, courts often allow defendants to raise the issue of suppressed evidence without stating what the evidence was. This article examines the consequences, both positive and negative, for prosecutors and defendants that may result from the defendant's mention of suppressed evidence. The article points out that while courts can assume that no damage will be done to the prosecution's case if the defense is allowed to use exclusion only as a shield from illegally-obtained evidence, the use of exclusion by the defense can also create costs for the defendant and advantages for the prosecution if the courts discourage the defense from arguing inferences from the excluded evidence. The article first discusses how use of the exclusionary rule to suppress evidence more often than not benefits the prosecution whether or not the existence of the evidence is ever admitted in court. The second part of the article examines how courts' improperly apply a broad view for allowing the defense to mention the existence of suppressed evidence when it is implied that the evidence was excluded for reasons of factfinding accuracy. The last section of the article then presents a narrower framework for allowing the mention of excluded evidence by the defense that does not compromise the integrity of the trial process that is for jurors to consider only the evidence admitted at trial and its relativity to the pursuit of the truth.