Assignment: An Ideal Judicial System

The American Exclusionary Rule: Is There a Lesson to Learn From Others?

Yue Ma 1

Abstract When the U.S. Supreme Court extended the application of the exclusionary rule in its landmark decision Mapp v. Ohio, it was leading the way in employing the exclusionary remedy as a means to protect people’s rights against unreasonable searches and seizures. The past 50 years have seen significant changes in the criminal justice landscape on the world scene. The exclusionary rule is no longer unique to American jurisprudence. The rule has been adopted by other Western countries as well. The American exclusionary rule, however, remains a unique rule in terms of its deterrence rationale and mandatory nature. No other countries have adopted a mandatory rule or rested the rule on its deterrent effect. This article discusses the operation of the exclusionary rule in four other countries and provides a comparative analysis of the American exclusionary rule. It analyzes the problems associated with the operation of a deterrence-based mandatory rule and explores the possibility of changing the American exclusionary rule from a mandatory to a discretionary rule. The analysis takes note especially two recent U.S. Supreme Court decisions that signal significant changes in the application of the exclusionary rule in the United States.

Keywords comparative crime/justice, Western Europe comparative crime/justice, courts/law, legal issues courts/law, North America

Introduction

The Fourth Amendment exclusionary rule requires exclusion of evidence obtained as a result of

official lawlessness. Fifty years ago, the U.S. Supreme Court in its landmark decision, Mapp v. Ohio

(1961), gave prominence to the rule by elevating it from a federal rule of evidence to a constitution-

ally required rule and extending its application to all jurisdictions in the United States. The Mapp

decision generated much debate and controversy. The rule aimed at excluding probative evidence

because of the manner in which it was obtained was characterized as ‘‘unique to American jurispru-

dence’’ (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, Burger, C. J.,

1 John Jay College of Criminal Justice, New York, NY, USA

Corresponding Author:

Yue Ma, John Jay College of Criminal Justice, 899 Tenth Avenue, New York, NY 10019, USA

Email: [email protected]

International Criminal Justice Review 22(3) 309-325 ª 2012 Georgia State University Reprints and permission: sagepub.com/journalsPermissions.nav DOI: 10.1177/1057567712457944 http://icj.sagepub.com

dissenting 1971) and criticized as irrational because ‘‘no civilized nation in the world has adopted it’’

(Wilkey, 1978).

Historically, in both common and civil law traditions there were rules against admission of

coerced confessions. But the rule governing admissibility of physical evidence was one of relevancy.

The English common law knew no notion of excluding probative evidence. Relevant evidence was

admissible regardless of the manner in which it was obtained (Williams, 1955; Zuckerman, 1989).

On the European continent, despite the existence of isolated cases in which evidence obtained as a

result of official lawlessness was excluded there was no established practice of excluding relevant

evidence based on any clearly articulated rationale (Pakter, 1985). The past several decades have

seen significant changes in the criminal justice landscape on the world scene. With the rise of indi-

vidual rights as a proper subject of international law, there has been a global trend in the direction of

providing more protections to the accused.

Amid these developments, more and more countries have adopted the exclusionary rule aimed at

excluding evidence obtained as a result of official lawlessness. Today, the exclusionary rule exists in

England and Wales, France, Germany, Italy, Canada, Australia, and even in China and Russia

(Amann, 2000; Bradley, 1983, 1993, 2007; Cho, 1999, 2001; Hatchard, Huber, & Vogler 1996; Jaini

& Noyes, 2001; Lewis, 2011; Orland, 2002).

The exclusionary rule though is no longer an American novelty, the American rule is still unique

because of its mandatory nature and deterrence rationale. In Mapp, the Supreme Court justified the rule

on several grounds. In subsequent years, the Court has justified the rule exclusively on its deterrent

effect. Moreover, except for situations covered by exceptions carved out by the Court, the rule requires

automatic exclusion of all illegally obtained evidence. By contrast, no other countries have adopted a

generally applicable mandatory rule or rested the rule on its effect as a deterrent against police illegality.

While the debate over the exclusionary rule never abates, two recent Supreme Court decisions

have triggered a new storm of controversy. In Hudson v. Michigan (2006), the Court rejected the

application of the exclusionary rule to police violation of the knock-and-announce rule and declared

that suppression of evidence ‘‘has always been our last resort, not our first impulse’’ (Hudson, p.

591). In Herring v. United States (2009), the Court extended the good faith doctrine to cover illegal

searches by police in reliance on a record-keeping error committed by another police employee. The

Court reasoned that to trigger the exclusionary rule, ‘‘police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the

price paid by the justice system’’ (Herring, p. 144).

Hudson and Herring are controversial not only because the two decisions further constricted the

domain of the exclusionary rule but also because the decisions herald a significant change in the

Court’s Fourth Amendment jurisprudence. The Court’s advocacy of a police culpability-based

approach suggests that the Court is ready to rethink how the exclusionary rule should be applied. Hud-

son and Herring are hardly the Court’s last word on the Fourth Amendment exclusionary rule. The

Court will hand down more decisions to further clarify the approach it suggested in the two decisions.

In anticipating more debate on the exclusionary rule, it is helpful that we evaluate the rule’s

application in the United States in comparison with the operation of the exclusionary rule in other

countries. The United States has long taken a self-centered approach in the study of criminal pro-

cedure. In today’s rapidly shrinking world, it is time that we look to other countries’ experience in

contemplating our own law reform. This article provides a comparative perspective of the exclu-

sionary rule. It evaluates the American exclusionary rule in comparison with the exclusionary rule

in England, Canada, France, and Germany. The introduction of the exclusionary rule in the four

countries provides readers with an overview of the rule’s operation in countries that follow the

common and the civil law traditions. More attention will be given to the practice in England and

Canada, for the two countries’ experience stands to provide more inspirations to our exclusionary

rule debate.

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The Exclusionary Rule in the United States

In federal prosecutions, the concept of exclusion can be traced to Boyd v. United States (1886).

The U.S. Supreme Court in the case first endorsed the concept of exclusion. Because the fact of Boyd

involved a compelled production of private papers through a subpoena rather than police obtaining

evidence by means of illegal searches and seizures, the Court rested its decision mainly on the Fifth

Amendment ground. The Court nonetheless stated that because of the intimate interrelationship

between the Fourth and the Fifth Amendments the compelled production of private papers ‘‘is the

equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning

of the Fourth Amendment’’ (Boyd v. United States, 1886, p. 634). The Court’s first exclusion

decision rested as much as on the Fifth Amendment as on the Fourth Amendment.

Although the genesis of the exclusionary rule may be traced back to Boyd, the Fourth Amendment

exclusionary rule is most commonly considered to have its origins in Weeks v. United States (1914).

In Weeks, the Court rested its decision to exclude illegally seized evidence squarely on the Fourth

Amendment ground. The Court reasoned that if evidence obtained through unlawful searches and

seizures could be used in evidence against a citizen accused of an offense, ‘‘the protection of the

Fourth Amendment declaring his right to be secure against such searches and seizures is of no value,

and . . . might as well be stricken from the Constitution’’ (Weeks v. United States, 1914, p. 393). Such

strong language seemed to indicate the constitutional necessity of the exclusionary rule. Six years

later, the Court reiterated the point in Silverthorne Lumber Co. v. United States (1920). Justice

Holmes, writing for the Court, stated that in the absence of the exclusionary rule, the Fourth Amend-

ment would have been reduced to ‘‘a form of words’’ (Silverthorne Lumber Co. v. United States,

1920, p. 392).

Despite the Court’s assessment of the constitutional necessity of the rule, it initially refused to

impose the rule on the states. In Wolf v. Colorado (1949), while affirming the significance of the com-

mands of the Fourth Amendment, the Court decided that the ways of enforcing the Fourth Amendment

commands should be left to the states. Twelve years later, the Court in Mapp v. Ohio (1961) declared

that the state experiment had been a failed one. It concluded that ‘‘other remedies have been worthless

and futile’’ in securing compliance with constitutional provisions. The Court characterized the exclu-

sionary rule as ‘‘constitutionally necessary’’ and considered it an ‘‘essential part of both the Fourth and

Fourteenth Amendments’’ (Mapp v. Ohio, 1961, p. 656–657). Based on this assessment, the Court

extended the application of the rule to all jurisdictions of the United States.

Mapp represented the high water mark of Court regard for the constitutional credentials of the

exclusionary rule (Crocker, 1993). The Court soon retreated from the position it took in Mapp and

showed far less enthusiasm with regard to the rule’s constitutional stature. In Mapp, the Court

justified the rule mainly on the twin grounds of judicial integrity and deterrence. In United States

v. Calandra (1974), the Court reclassified the rule and characterized it as a ‘‘judicially created

remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather

than a personal constitutional right of the party aggrieved’’ (Calandra, p. 348).

Resting the rule exclusively on its deterrent effect and treating it as a judicially created remedy

rather than a constitutional rule made it possible for the Court to carve out exceptions to the rule. As

the Court restated the rule’s status, it also emphasized the need to balance the costs and benefits of

the rule. In a series of decisions, the Court has made it clear that the rule does not operate in most

settings outside of trial. The Court has held that the rule has no application in grand jury proceedings

(United States v. Calandra, 1974), at habeas corpus (Stone v. Powell, 1976), at civil deportation

proceedings (INS v. Lopez-Mendoza, 1984), and at parole revocation hearings (Pennsylvania Board

of Probation v. Scott, 1998).

Based on the cost-benefit analysis, the Court has also fashioned the good faith doctrine to limit

the rule’s application at trial. In United States v. Leon (1984), the Court, applying the good faith

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doctrine, held that the rule did not apply when police officers in good faith relied on the validity of a

search warrant issued by a magistrate which later was found to be unsupported by probable cause.

The Court in subsequent cases further expanded the reach of the doctrine. In Illinois v. Krull (1987),

the Court extended the coverage of the doctrine to include illegal searches conducted by police in

reliance on a then valid but subsequently invalidated statute. In Arizona v. Evans (1995), the Court

expanded the doctrine to include police good faith reliance on an error made by a judicial employee.

A common theme in Leon, Krull, and Evans is that the Court allowed nonexclusion of illegally

obtained evidence when police officers in good faith relied on errors or mistakes made by govern-

ment officials not from law enforcement agencies. The Court perceived few benefits in excluding

evidence in such a situation. Exclusion would not deter police because they neither knew nor should

have known that the directives they received from an authoritative source would later turn out not to

be in compliance with the Fourth Amendment commands. Exclusion would not have deterrent effect

on nonpolice actors such as judges, magistrates, or a legislature, for they are not engaged in the com-

petitive enterprise of ferreting out crimes. Nonpolice actors, in the analysis of the Court, are unlikely

to deliberately disregard the constitutional mandates merely because the exclusionary remedy is not

available to defendants.

In Herring v. United States (2009), the Court departed from the long-established rationale behind

the good faith doctrine and expanded the doctrine to cover even police reliance on errors made by

law enforcement personnel. Herring is controversial because such expansion cannot be squared with

the justifications for the good faith exception relied upon by the Court in all previous cases. The

Herring Court justified its ruling on a new ground, that is, the analysis of the degree of police culp-

ability. The Court stated that the exclusionary rule applies only when the police conduct is suffi-

ciently deliberate and sufficiently culpable. This is so because only sufficiently deliberate police

conduct is capable of being deterred and only when there is sufficient culpability the deterrence

is worth the price paid by the justice system. The Court further stated that ‘‘the exclusionary rule

serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring

or systemic negligence’’ (Herring, p. 144).

The issue in Herring was whether the exclusionary rule should apply when the police conducted

an illegal search in reliance on a record-keeping error made by another police employee. The Court

held that the rule did not apply because the error did not rise to the sufficient level of culpability. The

Court though decided on a narrow issue, its broad dicta forecast a new approach of applying the

exclusionary rule. Under this new police culpability-based approach, the exclusionary rule applies

only where a Fourth Amendment violation is deliberate, reckless, or grossly negligent and the rule

would have no application when police conduct is a result of isolated negligence.

The Mapp Court had high expectations of the rule. It expected that the imposition of the rule

would prevent the destruction of the ‘‘entire system of constitutional restraints on which the liberties

of the people rest’’ and that the rule would ensure that the rights secured by the Fourth Amendment

would not ‘‘remain an empty promise’’ (Mapp, p. 660). Today, as Mapp reaches its 50th anniversary

it is by no means certain that the exclusionary rule has lived up to the Court’s expectations. The

Mapp Court envisioned wide scope for the exclusionary rule and suggested that all evidence

obtained in violation of the Fourth Amendment should be excluded. The Mapp Court’s enthusiasm

for the rule is not shared by the later Court. The later Court, more concerned about the rule’s sub-

stantial social costs, has carved out numerous exceptions to restrict the rule’s application.

The rule, as is currently applied, is subject to criticism by conservatives and liberals alike. Con-

servatives believe that society has been asked to pay a high price—in terms of setting guilty persons

free and impeding the truth-seeking function of trials—for the vindication of Fourth Amendment

rights. They are critical especially of the prospect of letting dangerous criminals go free because

of evidentiary exclusion based on minor or technical police errors. Liberals on the other hand com-

plain about the Court’s persistent efforts to constrict the domain of the rule and argue that the

312 International Criminal Justice Review 22(3)

restrictions imposed on the rule have resulted in watered-down Fourth Amendment protections

against unreasonable searches and seizures.

The Exclusionary Rule in Other Countries

England and Wales

The common law contains no notion of excluding probative evidence for the purpose of regulat-

ing police behavior. The common law rule was one of relevancy. All relevant evidence is admissible

(Williams, 1955). While common law judges had the discretion to exclude illegally obtained evi-

dence for the interest of ensuring a ‘‘fair trial according to the law’’ (Regina v. Sang, 1980,

p. 455), such discretion was rarely exercised. This is because there was a high threshold for finding

that admission of illegally obtained evidence would make a trial unfair (Cho, 1999; Shanks, 1983).

The passage of the Police and Criminal Evidence Act 1984 (PACE) marked one of the most sig-

nificant events in the history of British criminal procedure. PACE for the first time in the history of

British law affords statutory grounds for excluding illegally obtained evidence. There are two pro-

visions in PACE under which the courts may exclude illegally obtained evidence. Section 76 calls

for exclusion of any confession that is obtained by oppression or that is likely to be rendered unreli-

able by anything said or done by the police. This section provides no ground for exclusion of non-

confession evidence.

The authority to exclude real evidence is found in Section 78. The section provides that the courts

have the authority to exclude evidence that would have ‘‘an adverse effect on the fairness of the pro-

ceedings.’’ Under the provision, the courts are to consider ‘‘all the circumstances, including the cir-

cumstances in which the evidence was obtained’’ to determine whether admission of the evidence

would adversely affect the fairness of the proceedings. Since the passage of PACE, despite the

courts’ willingness to exercise the fairness-based discretion to exclude illegally obtained evidence,

there has not emerged a consistent rationale for exercising the discretion under Section 78. In many

cases, the courts give no explanation for their decisions to admit or exclude evidence. Analysis of

decided cases, however, allows us to gain some understanding of the approach taken by the courts

in implementing the exclusionary rule under Section 78.

The courts in several decisions have held that the discretion to exclude evidence should not be

exercised for purposes of penalizing or disciplining the police. The rationale behind the approach

is that the duty of the court is to decide if the accused is guilty and it is not the function of a judge

to discipline police for exceeding their powers (Fox v. Chief Constable, 1985; Regina v. Sang, 1980;

Regina v. Mason, 1988; Regina v. Delaney, 1989).

The discretionary nature of the exclusionary rule determines that not every breach of the police

code of conduct would lead to exclusion. The courts, as directed by PACE, consider all the circum-

stances in evaluating whether illegally obtained evidence should be excluded. The courts interpret

that Section 78 sets a high threshold for excluding evidence. As one court noted, ‘‘[t]he task of the

court is not merely to consider whether there would be an adverse effect on the fairness of the pro-

ceedings but such an adverse effect that justice requires the evidence to be excluded’’ (Regina v.

Walsh, 1989, p. 163; see also, Regina v. Keenan, 1989; Regina v. Rehman, 2006; The Public

Prosecution Service v. Elliot, 2011).

Under Section 78, exclusion of evidence is warranted only when admission of the evidence would

have ‘‘an adverse effect on the fairness of the proceedings.’’ One of the most noteworthy aspects of

jurisprudence on Section 78 is that in determining whether admission of evidence would affect the

fairness of the proceedings the courts consider not only fairness to the accused but also fairness to

the public. The courts strive to maintain a balance between the public interest in crime control and

the accused’s interest in having a fair trial. Under this balancing approach, the courts, depending on

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the circumstances, may find that the fairness of the proceedings may be adversely affected by either

admission or exclusion of illegally obtained evidence.

Under Section 78, the courts still adhere to the common law position that the illegal manner in

which evidence was obtained alone is not a ground for exclusion. In determining whether admission

of illegally obtained evidence would affect the fairness of the proceedings, the courts consider a host

of factors, including the nature of police violation, the gravity of the offense with which the defen-

dant is charged and the probative value of the evidence. While the courts may consider excluding

evidence in cases involving trivial offenses, they are more likely to decide not to exclude evidence

in cases involving serious crimes. In cases involving serious crime but minor police violations, the

courts may consider exclusion, rather than admission, of illegally obtained evidence may adversely

affect the fairness of the proceedings (Regina v. Hughes, 1994; Regina v. Cooke, 1995).

Based on the language of ‘‘such an adverse effect’’ in Section 78, the courts adopt the view that

the section tolerates certain degree of unfairness. Even when it is determined that admission of

improperly obtained evidence may unfairly affect the accused, a strong case for admissibility based

on public interest consideration can override such concerns (Regina v. Alladice, 1988). Because of

the balancing approach taken by the courts, it is relatively unusual for real evidence to be excluded

(Bradley, 2001; Cho, 1999; Feldman, 1999; Grevling, 1997).

Canada

In most common law countries, including England, the law governing police behavior does not

acquire a constitutional status. The scope of police authority is normally defined by statutes and the

common law. For a long time, Canada followed the same practice. The Canadian Constitution when

enacted in 1867 contained no Bill of Rights. In 1960, the mounting dissatisfaction with the absence

of a codified instrument setting out basic rights and freedom led to the enactment of the Canadian

Bill of Rights. The Bill of Rights is not a constitutional document but only an act of the Federal

Parliament. There is no provision in the Bill of Rights calling for exclusion of evidence obtained

in violation of its provisions. The Bill of Rights thus did not become an effective instrument in pro-

tecting people’s rights and freedom (Roach, 2002; Stribopoulos, 1999). The situation changed with

the adoption of Canadian Charter of Rights and Freedom in 1982. The Charter is a constitutional

document and its drafting was heavily influenced by the American Bill of Rights. It provides for the

right against unreasonable searches and seizures and contains an exclusion mechanism to deal with

evidence obtained in violation of Charter provisions.

Section 24(2) of the Charter, which defines the Canadian exclusionary rule, states that where

‘‘a court concludes that evidence was obtained in a manner that infringed or denied any rights or

freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having

regard to all the circumstances, the admission of it in the proceedings would bring the administration

of justice into disrepute.’’

The section provides for a discretionary rule, which requires no automatic exclusion of illegally

obtained evidence. Whether a violation of Charter provisions would result in exclusion depends on

whether admission of such evidence would bring the administration of justice into disrepute. To

ensure a consistent application of the exclusionary rule, the Canadian Supreme Court has developed

a two-step framework for the application of the rule. The trial court first determines whether there is

a Charter violation. Once a violation is established, the court then determines whether admission of

illegally obtained evidence would bring the administration of justice into disrepute. The Supreme

Court has also developed a three-factor analysis to aid the determination whether admission of the

evidence would bring the administration of justice into disrepute. The three factors are: (i) admission

of the evidence on trial fairness; (ii) seriousness of the Charter violation; and (iii) the effect of evi-

dentiary exclusion (Regina v. Collins, 1987; Regina v. Stillman, 1997).

314 International Criminal Justice Review 22(3)

In keeping with the common law tradition, the Canadian courts give serious consideration to trial

fairness. It is believed that unfair trial would bring the administration of justice into disrepute. Based

on this assessment, once it is determined that admission of evidence would affect the fairness of trial,

the courts would usually exclude the evidence. The courts, however, are more likely to make this

determination in cases involving unlawfully obtained confessions and rarely conclude that admis-

sion of real evidence would affect the fairness of the trial. The reasoning relied upon by the courts

is that real evidence had been in existence at the time of police misconduct and it was not created by

police illegality (Harvie & Foster, 1992; Stribopoulos, 1999).

The courts next consider the seriousness of the Charter violation. Evidentiary exclusion in

Canada is not for the purpose of disciplining the police or providing a remedy for police misconduct

(Regina v. Collins, 1987). The significance of assessing the seriousness of Charter violation is that

the more serious a violation the more likely the courts may conclude that admission of the evidence

would bring the administration of justice into disrepute. A judge is more likely to exclude evidence

when it was obtained as a result of a flagrant, willful, or deliberate violation and less likely to

exclude evidence when the violation is inadvertent, technical or committed to prevent the loss or

destruction of evidence (Regina v. Genest, 1989; Regina v. Greffe, 1990; Regina v. Babinski, 1992).

Finally, the courts consider the effect of evidentiary exclusion on the disposition of the case. In

Collins (1987), the Canadian Supreme Court made it clear that the administration of justice can be

brought into disrepute by either admission or exclusion of unconstitutionally obtained evidence. The

ultimate issue is ‘‘whether the system’s repute will be better served by admission or exclusion of the

evidence’’ (Regina v. Collins, 1987, p. 285). According to the Court, the administration of justice

would be brought into disrepute if evidence essential to securing conviction were excluded because

of a ‘‘trivial’’ breach of the Charter. This is so especially when a crime is a serious one.

The Canadian Supreme Court in a recent decision, Regina v. Grant (2009), further clarifies its

approach in evidentiary exclusion. The Court reasons that the purpose of Section 24(2) is to maintain

the good repute of the administration of justice. The term administration of justice embraces main-

taining the rule of law and upholding Charter rights in the justice system as a whole. The Court reaf-

firms that in determining whether the admission of evidence obtained in breach of the Charter would

bring the administration of justice into disrepute engages three avenues of inquiry. In making the

determination, a court must assess and balance the effect of admitting the evidence on society’s

confidence in the justice system having regard to: (1) the seriousness of the Charter violation, (2)

the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest

in the adjudication of the case on its merits. The court’s role is to balance the assessments under each

of these lines of inquiry to determine whether, considering all the circumstances, admission of the

evidence would bring the administration of justice into disrepute.

France

Procedural violation may lead to evidentiary exclusion in France, but the exclusionary rule is far

less invoked in France than it is in the United States. This is attributable to the discretionary nature of

the exclusionary rule and the less stringent rules governing searches and seizures. Suspects and

defendants in France enjoy relatively less procedural protections than those in the United States and

other Western European countries. France is known for its policy of placing society’s interest in

crime control ahead of individual’s interest in personal liberty (Frase, 1990; Tomlinson, 1983). This

policy is reflected in the application of the exclusionary rule.

There are rules in the Code of Criminal Procedure governing the conduct of searches and

seizures. For instance, the code provides that the search of a premise must be carried out in the pres-

ence of the householder or his representative. If this is not possible, the search must be observed by

two witnesses chosen by the police. There is also a provision prohibiting searches of private

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domiciles before 6:00 a.m. or after 9:00 p.m. The code, however, does not require automatic exclu-

sion of the evidence obtained in violation of code provisions. The code grants the courts the authority

to exclude illegally obtained evidence but also sets a high threshold for exclusion. Violation of code

provisions by itself normally would not lead to exclusion. In a given case, the court would exclude

evidence only when the defendant can show that the violation harmed his interest other than obtain-

ing of incriminating evidence (Frase, 2007). This apparently is a daunting task for the defendant.

In France, the less frequent application of the exclusionary rule is also attributable to the lack of

stringent search and seizure rules. There is no probable cause requirement to searches and seizures in

French law; nor is there a general requirement for judicial warrant for searches and seizures. The

French police, in comparison with their American counterpart, have much broader authority to take

coercive measures without judicial approval. When investigating flagrant offenses, the police have

the authority, without judicial approval, to search for and seize relevant evidence, detain or arrest

suspects, seal off the crime scene, and prevent potential witnesses from leaving the scene of crime.

Flagrant offenses are broadly defined. An offense remains flagrant as long as its effects are still

visible and the evidence is still fresh. This means that the police may have authority to take coercive

measures for days without judicial approval (Frase, 2007; Vogler, 1996; West, Desdevises, Fenet,

Gaurier, & Heussaff, 1992).

Exclusion as a remedy comes into play only when there are specific violations of procedural

rules. When procedural rules are lax or lacking, it is not surprising that there are fewer police

violations and fewer occasions for invoking the exclusionary rule.

Germany

In Germany, exclusion of evidence can be based on constitutional and nonconstitutional grounds.

The requirement for exclusion, depending on the circumstances, can be mandatory or discretionary.

The most notable aspect of the German exclusionary rule probably is that for the ultimate protection

of citizens’ constitutional rights, the courts may exclude evidence that is obtained in perfectly legal

fashion.

The German exclusionary rule is based on three constitutional principles: (a) the principle of free

development of one’s personality; (b) the principle of just state; and (c) the principle of proportion-

ality. The principle of just state is similar to the American due process clause. The principle rests on

the rationale that a functioning criminal justice system must be based on the rule of law. The

principle, however, does not require automatic exclusion of illegally obtained evidence. It merely

acknowledges that violation of procedural rules may lead to exclusion. Because exclusion based

on this principle is decided on a case-by-case basis, it is difficult to predict under what circumstances

the courts may decide to invoke the exclusionary rule (Weigend, 2007).

The German Constitution protects the free development of one’s personality. The courts consider

the protection of citizens’ privacy interest an essential component of the principle of free develop-

ment of one’s personality. Violation of citizen’s privacy interest thus provides a valid ground for

evidentiary exclusion. The German Constitutional Court recognizes two levels of privacy. The first

level of privacy enjoys the absolute protection. The protection of privacy at this level is based on

Article I and Article II of the Constitution. Article I provides that the dignity of man is inviolable.

Article II provides for the free development of one’s personality. Based on the constitutional

provisions, the Court takes the position that evidence belonging to an individual’s most private

sphere should not be seized or used in any court proceedings. Because of this reasoning, highly

personal matters may be excluded from evidence even when they are obtained by lawful means. This

absolute protection gives rise to a unique aspect of the German exclusionary rule, that is, even leg-

ally obtained evidence may be excluded for the interest of protecting citizens’ constitutional right of

free development of personality (Judgment of Mar. 16, 1983).

316 International Criminal Justice Review 22(3)

Less protection is given to privacy interest at the second level. Privacy at this level is protected

but can be intruded upon if such invasion is necessary to advance a compelling state interest. In

deciding whether to exclude evidence obtained in violation of the second level of privacy, the courts

balance the individual’s privacy interest against the state interest in crime control. The courts are

more likely to sanction intrusions in an individual’s private sphere when the crime under investiga-

tion is a serious one. In a tax evasion case, for instance, the German Constitutional Court excluded

the evidence of defendant’s conversation secretly recorded by the police on the ground of invasion of

privacy. The Court at the same time made it clear that if the crime were of a more serious nature the

principle of proportionality would allow admission of such evidence (Judgment of Jan. 31, 1973).

A Comparative Analysis

The exclusionary rule operates differently in different countries. In comparison with the Amer-

ican exclusionary rule, however, there is something in common in the operation of the exclusionary

rule in the four countries discussed. None of the four countries have adopted a mandatory rule and

none have rested the rule on the deterrence rationale. In the United States, the exclusionary rule in

the past 40 years has been applied as a mandatory rule based on deterrence. While the debate rages

on as to whether it is a good idea to rest the rule on the deterrence rationale or to implement a

mandatory rule, it rarely occurs to judges and scholars to look to other countries’ experience for

inspirations in the debate. In the following discussion, we examine the reality of the operation of

the American exclusionary rule, analyze the problems with its application, and explore the possibil-

ity of changing the American exclusionary rule from a mandatory rule to a discretionary rule based

on other countries’ experience.

An Evaluation of the American Exclusionary Rule

The deterrence rationale and the mandatory nature are the two features that set the American

exclusionary rule apart from the exclusionary rule in other countries. It is helpful that we evaluate

the rule’s application and reassess the soundness of implementing a mandatory rule that rests solely

on deterrence.

Since the 1970s, the Supreme Court has focused on the efficacy of the exclusionary rule and held

that the exclusionary rule applies only where its application can produce appreciable deterrence and

that the benefits of deterrence outweigh the costs. By resting the rule on its deterrent effects, the

Court seems to treat the rule as an empirical proposition. But the Court has not been troubled by

the lack of compelling evidence in support of the rule’s deterrent effects. The rule survives on the

ground of deterrence merely because of the Court’s willingness to indulge in the presumption that

the rule functions as an effective deterrent against police illegality.

The results of the empirical studies on the deterrent effects of the rule are mixed. Most studies

done in the years immediately following the extension of the exclusionary rule to the states suggest

that the rule produced no direct deterrent effect on individual police officers (Canon, 1971; Oaks,

1970). In the ensuing years, no empirical researcher, proponent or opponent of the rule has been able

to establish with any assurance whether the rule has a deterrent effect. Because of the methodolo-

gical difficulties associated with testing the deterrence hypothesis, some scholars long ago warned

that ‘‘[w]hen all factors are considered, there is virtually no likelihood that the Court is going to

receive any ‘relevant statistics’ which objectively measure the ‘practical efficacy’ of the exclusion-

ary rule’’ (Davies, 1974, pp. 763–764).

Despite the lack of evidence of the rule’s direct value on individual police officers, there is evi-

dence indicating the rule’s systemic effect. Since the imposition of the exclusionary rule police

departments nationwide have initiated programs designed to teach their officers relevant Fourth

Ma 317

Amendment law and to make officers more sensitive to citizens’ constitutional rights (Canon, 1971;

Kamisar, 1983, 2003; Orfield, 1987). Encouraged by the finding, some commentators argue that the

true value of the exclusionary rule lies not in its direct ‘‘push-pull deterrence’’ but its long-term ben-

efits, including its effect of serving as ‘‘long-term guidance and habit formation’’ among police offi-

cers with increased training and education on the search and seizure law (Alschuler, 2008).

It is fair to ask, however, whether the increased efforts of police agencies to educate and train

their officers are attributable entirely to the implementation of the exclusionary rule. It should be

noted that at about the same time the Court extended the application of the exclusionary rule, courts

and legislatures at the federal and state levels also began to make civil remedy more available to

victims of police misconduct. The past several decades have witnessed a significant increase in the

number of successful damage suits against the police (Avery, Rudovsky, & Blum, 1997; Littlejohn,

1981; McCoy, 1984). The concern over civil lawsuits undoubtedly is also an important factor that

prompted police agencies into action to better educate and train their officers.

In contrast to the inconclusive findings on the rule’s effects, there seem to be fairly consistent

findings on the rule’s costs. In a widely cited study Professor Nardulli examined the court records

of 7,500 felony cases and found that only 40, representing about one-half of one percent of the total

number of cases, ended up in nonconvictions because of the rule (Nardulli, 1983). The results of a

comprehensive survey conducted by Professor Davies on the impact of the rule similarly suggest that

only a small percentage of cases are affected by the rule. The findings of his study indicate that the

rule resulted in nonprosecution or nonconviction of between 0.6% and 2.35% of individuals arrested for felonies (Davies, 1983). In a more recent survey, Stephen Valdes reported that a suppression

motion was made in 7.34% of the cases in his study and the motion led to acquittal or dismissal in 11.62% of the cases where the motion was made (Valdes, 2005).

The weight of evidence seems to suggest that the ‘‘costs’’ of the exclusionary rule—calculated in

terms of dropped prosecutions and lost convictions—are quite low (Davies, 1983; Feeney, Dill, &

Weir, 1983; Nardulli, 1983, 1987; Valdes, 2005). More significantly, the findings indicate consis-

tently that the exclusionary rule affects mainly cases involving drugs and weapon possession

offenses. For instance, Davies’s study shows that while the cumulative loss for drug arrests is in the

range of 2.8–7.1%, the cumulative loss in felony arrests for offenses other than drugs or weapon pos- session is no more than 0.3–0.7% (Davies, 1983).

Notwithstanding the low percentage of cases lost due to evidentiary exclusion, not everyone

agrees that the ‘‘costs’’ of the rule are low. Some argue that when the percentage is converted into

actual numbers the impact of the rule is significant. They note that the application of the rule could

result in the loss of tens and thousands of cases each year. Some empirical studies even tie the

exclusionary rule to a substantial increase in crime rates. In one study, the author reported that in

cities included in the study violent crimes increased by 31% and property crimes by 21% after the imposition of the exclusionary rule (Atkins, 1998).

The mandatory nature represents another feature of the American exclusionary rule. In theory,

it seems justified to implement a mandatory rule. When police violations are of a constitutional

dimension, mandatory exclusion is warranted. Despite the rhetoric, there is no mandatory appli-

cation of the rule in reality. Because of various restrictions set by the Court, the rule does not apply

under many circumstances. Dissatisfied with the restrictions set by the Court, proponents of the

rule accuse the Court of creating a gap between the formal pronouncements about the Fourth

Amendment rights and the implementation of those rights. They complain that while maintaining

its image as the institutional guardian of constitutional rights, the Court has in effect turned citi-

zens’ rights to mere symbols (Smith & Hurst, 1997). For opponents of the rule, the mandate of

automatic exclusion remains the most controversial aspect of the rule. They argue that society has

been asked to pay too high a price for the vindication of Fourth Amendment rights (Nardulli, 1983,

1987; Posner, 1982).

318 International Criminal Justice Review 22(3)

Can the American Exclusionary Rule be Reformed Based on Other Countries’ Experience?

The analysis of the application of the American exclusionary rule suggests a genuine difficulty in

implementing a deterrence-based mandatory rule. First, despite the rhetoric that police mistakes of a

constitutional dimension call for automatic exclusion, the Supreme Court has no intention of imple-

menting a real mandatory rule. Second, it is unsustainable to rest a deterrence-based rule either on

statistical uncertainties or on the presumption that the rule has the intended effects. In light of the

theoretical and realistic difficulties in implementing such a rule, it is worthwhile that we consider

other countries’ experience and the possibility of changing the American exclusionary rule to a dis-

cretionary rule that rests on the rationale of ensuring the fair administration of justice rather than

deterrence.

In contemplating the adoption of a discretionary rule, it is important that we address two issues.

The first is whether there are constitutional barriers to a discretionary rule. The second is whether a

switch to a discretionary rule would substantially diminish the rule’s effect.

The first issue seems easy to resolve. The Supreme Court has made it clear that the exclusionary

rule is not a constitutionally required rule and it is merely a judicially created remedy designed to

safeguard Fourth Amendment rights through its deterrent effect. The Court’s linking of the rule’s

applicability to its deterrent effect underscores its position that not every Fourth Amendment

violation would trigger the exclusionary rule. Because there is no mandate that Fourth Amendment

violations must be remedied by evidentiary exclusion, there should not be constitutional barriers to

the adoption of a discretionary rule. It should be noted that other countries’ experience also indicates

that it is not the case that violation of rules of constitutional stature must be remedied by exclusion of

evidence. Both Germany and Canada have criminal procedural rules that attain the constitutional

status, but neither country requires automatic exclusion of evidence obtained as a result of consti-

tutional violations.

Over the years, some comparative legal commentators have suggested the possibility of changing

the American exclusionary rule from a mandatory rule to a discretionary rule by referring to other

countries’ experience (Bradley, 1983, 1993; Stribopoulos, 1999). The idea is not taken seriously. A

main concern over the suggestion is that a discretionary rule would reduce the exclusionary rule’s

deterrent effect and render it a toothless remedy for Fourth Amendment violations (Kamisar, 1987,

2003; White, 1995). We, however, should not conclude too quickly that a discretionary rule will

reduce the rule’s effect.

To address the issue whether a discretionary rule would diminish the rule’s effect, it is necessary

that we examine the rule’s effect as it is currently applied. The existing studies seem to have

established the following: (a) the exclusionary rule affects only a small percentage of cases and its

application is confined largely to drugs, gambling, and weapon possession cases; (b) there is no con-

clusive evidence that the rule has direct deterrent effect on individual police officers; and (c) there is

evidence indicating the rule’s systemic effect, that is, the effect of encouraging police departments to

educate and train their officers. In light of these findings, we may suggest that the adoption of a dis-

cretionary rule not necessarily would diminish the rule’s effect.

At the level of individual officers, it is hard to argue that a discretionary rule would reduce the

rule’s effect when there is no evidence indicating the current rule has any direct effect on individual

officers. Moreover, even though we assume that the rule has certain deterrent effect on individual

officers, we must acknowledge that the effect is not produced by a fully operational mandatory rule

but by a selectively enforced rule. The adoption of a discretionary rule thus not necessarily would

lead to less applications of the rule and correspondingly such a switch not necessarily would dimin-

ish the effect of the rule as it is currently applied.

As to the rule’s systemic effect, there is no evidence indicating that the effect is attributable

entirely to the implementation of the exclusionary rule. It is likely that the increased efforts by police

Ma 319

departments to train and educate their officers are also prompted by concerns over civil liability law-

suits. There seems consensus among researchers that the prospect of civil liability lawsuits has

played a significant role in police agencies’ efforts to educate their officers to enforce the law within

the bounds of law. In a study comparing the influence of constitutional appellate court decisions and

civil liability lawsuits in shaping police policies, the authors found that police executives perceived

civil liability lawsuits to have led to law enforcement policy changes more frequently than consti-

tutional decisions by the U.S. Supreme Court. Most police executives indicated that the Supreme

Court decisions had little impact on their job (Smith & Hurst, 1997).

Because the exclusionary rule is not the only factor that is accountable for the increased efforts on

the part of police agencies to train and educate their officers, there is no reason to believe that a

switch to a discretionary rule would make police departments less willing to train and educate their

officers. The prospect of civil liability lawsuits remains a powerful incentive for police departments

not to lessen their efforts to ensure that their officers respect citizens’ constitutional rights. More-

over, a discretionary rule is still an exclusionary rule. There is no reason to assume that the adoption

of a discretionary rule would set police departments free from the concern of evidentiary exclusion.

The adoption of a discretionary rule, while not likely to reduce the rule’s effect, will rid of many

drawbacks of the rule as it is currently applied. In countries that have the discretionary rule, such as

England and Canada, the courts are permitted to consider the totality of the circumstances when

determining whether admission or exclusion of illegally obtained evidence would likely to affect the

interest of fair administration of justice. When police violations are minor or technical in nature, and

when exclusion of reliable but illegally obtained evidence may result in a defendant guilty of serious

crime escaping conviction, the court most likely would admit the evidence.

In the United States, the mandatory rule prohibits judges to consider factors other than police vio-

lations. This, however, does not mean judges would not consider other factors. In deciding cases,

judges are guided by law as well as by their conscience and sense of justice. Notwithstanding the

prohibition, when a judge finds that exclusion of reliable evidence obtained as a result of minor

police violation would make a guilty defendant go free, he may perceive the result as unjust and dis-

turbing. He then may find ways to avoid the rule’s application. As noted by some commentators,

judges in such an event may resort to tactics such as refusing to find police illegality or unprincipled

interpretation of the law to circumvent the rule (Caldwall & Chase, 1994; Stribopoulos, 1999). It is

probably not a coincidence that empirical studies reveal that cases affected by the exclusionary rule

are mainly cases involving drug and weapon possession offenses and cases involving serious crimes

are rarely lost because of the rule.

The mandatory rule leaves no room for consideration of the nature of police mistakes. Ironically,

it is in the United States that the rigid application of the exclusionary rule is most likely to bring

about unfair results. In other countries, rules of criminal procedure usually are spelled out in statutes

or a comprehensive code of criminal procedure. No such comprehensive code exists in the United

States. The police are expected to follow a body of search-and-seizure law that sometimes even

baffles judges and legal scholars. Because of the complexity and ambiguity of the rules, police offi-

cers oftentimes have difficulty comprehending the rules they are supposed to follow. As one study

reveals, even the extensively trained and most conscientious officers had difficulty identifying what

were prohibited under some leading Supreme Court decisions (Heffernan & Lovely, 1991). This

state of affairs makes it more likely that police officers may make innocent mistakes as to the reason-

ableness of their actions.

Admittedly, there is no precise formula for determining whether it is reasonable for the police to

take certain actions. It is unfair to punish the police for their inability to comprehend the complex

body of search-and-seizure law. It is the common knowledge that punishment serves as a deterrent

only when the actor has the knowledge that what he is about to do is wrong. It is questionable how

exclusion of evidence may serve as an effective deterrent when police officers are unclear of the

320 International Criminal Justice Review 22(3)

rules they are supposed to follow or are unable to make a precise judgment as to the reasonableness

of their actions.

Due to the complex nature of the search-and-seizure law, there is a greater chance that police

officers may fail to act in compliance with the Fourth Amendment commands inadvertently. It is

thus a better idea that American judges, like their counterparts in England and Canada, be given the

discretion to consider the nature of police violations when making exclusion decisions. The courts

should also be allowed to consider factors such as gravity of the crime with which the defendant is

charged, the probative value of the evidence, and the effect of evidentiary exclusion. The exclusion-

ary rule should not rest on the unproven effect of deterrence but, like the case in England and

Canada, on the ground of ensuring the fair administration of justice. It offends basic concept of

criminal justice that the courts let guilty defendants go free because of evidentiary exclusion based

on minor or innocent police transgressions.

It is important to note that the U.S. Supreme Court in Hudson and Herring expressed its dissa-

tisfaction with the mandatory approach and indicated the need to consider the level of police

culpability in making exclusion decisions. In Hudson, the Court declared that ‘‘exclusion may not

be premised on the mere fact that a constitutional violation was ‘but-for’ cause of obtaining evi-

dence’’ (Hudson, p. 592). In Herring, the Court suggested linking the applicability of the exclusion-

ary rule to the level of police culpability and stated that the exclusionary rule applies only where a

Fourth Amendment violation is deliberate, reckless, or grossly negligent.

If the Court indeed intends to have the lower courts inquire into the degree of police culpability in

each case and apply the exclusionary rule only in cases where there is sufficient degree of police

culpability, the Court definitely brings the American exclusionary rule practice a step closer to the

practice in England and Canada. In England and Canada, the courts apply a balancing test in making

evidentiary decisions. The courts consider a host of factors in determining whether admission of

illegally obtained evidence would adversely affect the fairness of the proceedings or bring the

administration of justice into disrepute. Under Herring, the courts are also to apply a balancing test.

The courts are to balance the benefits and costs of the exclusionary rule and apply the rule only when

police culpability reaches the level that is capable of being deterred and such deterrence is worth the

price paid by the justice system. It is significant to note that since Herring the lower courts have

extended the police culpability analysis beyond the bounds of cases involving warrants and police

reliance on mistakes of other government officials. The courts have applied the analysis to warrant-

less searches as well (United States v. Julius, 2010; United States v. Master, 2010).

A concern over the adoption of a discretionary rule is that the courts may pay lip service to the

rule and turn the rule into a remedy that has no substantial impact on police behavior. An examina-

tion of case law since Herring seems to indicate that such a concern is not warranted. Some courts

have interpreted Herring as granting them the authority not to automatically exclude illegally

obtained evidence but to exclude only evidence obtained as a result of deliberate, reckless, or grossly

negligent violation of the Fourth Amendment commands. There is no evidence that the courts have

used the police culpability analysis as an excuse to circumvent the exclusionary rule. The courts that

encountered the issue seriously analyzed the circumstances surrounding the search and ruled for

exclusion when they found flagrant police conduct or when the police officers had knowledge, or

may properly be charged with knowledge, that the search was unconstitutional (see, e.g., United

States v. Ling Zhen Hu and Xiao Chen Lin, 2011; United States v. Hamilton, 2009; United States

v. Parson, 2009; United States v. Toledo, 2009).

In the current mandatory rule regime, despite the prohibition to consider other factors judges may

well take into consideration the nature of police violation and the seriousness of the crime involved

to avoid the unfair result of letting guilty defendants go free because of evidentiary exclusion based

on minor or technical police errors. In light of this reality, the adoption of a discretionary rule may

bring about a more principled application of the exclusionary rule. When finding police violations

Ma 321

no longer dispositive, the courts are more likely to honestly point out police illegality, which would

help officers realize their mistakes and avoid making similar mistakes in the future. But when judges

refuse to find police illegality for fear of loss of evidence, the transgressing officers would remain

ignorant as to whether and how they violated the constitutional commands.

Another benefit of a discretionary rule is that it may allow the Supreme Court to expand the scope

of the Fourth Amendment. Since the Mapp decision, the Court has taken a narrow approach in inter-

preting the Fourth Amendment. Some commentators believe that this approach is motivated by a

desire to ‘‘round the sharp edges of the exclusionary rule’’ (Katz, 1980, p. 117; see also, Caldwall

& Chase, 1994). In Canada, by contrast, because finding police illegality requires no automatic

exclusion, the Canadian Supreme Court has taken a more expansive view than the U.S. Supreme

Court in defining the coverage of the search-and-seizure law (Glasser, 2003; Stribopoulos, 1999).

A switch to a discretionary rule thus may lead to a more expansive definition of the Fourth Amend-

ment rights.

Conclusion

Fifty years ago when the U.S. Supreme Court extended the application of the exclusionary rule, it

was leading the way in employing the exclusionary remedy to protect the right of privacy and deal-

ing with unreasonable government intrusions. The past several decades have seen a sea change in the

criminal justice landscape in the world community. Many countries have adopted the rule aimed at

excluding illegally obtained physical evidence. The American exclusionary rule nonetheless

remains a unique rule in terms of its mandatory nature and deterrence rationale. No other countries

have adopted a generally applicable mandatory rule that rests on its deterrent effect.

The problem with the deterrence-based mandatory rule is that there is no compelling evidence

indicating the rule has a deterrent effect and there is no mandatory application of the rule. The inher-

ent difficulty with resting the rule on the deterrence rationale is that the methodological difficulties

make it virtually impossible for the Court to receive reliable statistics to measure the practical effi-

cacy of the rule. It is also unrealistic to expect that judges would not take into consideration factors

other than police rule violations. If acquittal of an apparently guilty defendant because of evidentiary

exclusion based on minor police errors offends sense of justice of English and Canadian judges, it

offends sense of justice of American judges as well. The imposition of a mandatory rule would not

make judges not consider other factors, it merely make them consider those factors in a covert

fashion.

In light of the theoretical and practical difficulties in implementing a deterrence-based mandatory

rule, it is worthwhile that we consider taking lessons from other countries’ experience and changing

the American exclusionary rule to a discretionary rule that rests not on deterrence but on ensuring the

fair administration of justice. Following the American exclusionary rule tradition, judges may con-

tinue to consider the deterrent effect of the rule on the police. They should also have the discretion to

consider factors such as the nature of the police violation, the seriousness of the crime involved, the

probative value of the evidence, and the effect of evidentiary exclusion. Judges are not empirical

researchers and they cannot claim expertise in judging sufficiency of empirical evidence in support

of the rule’s deterrent effect, but they are on a familiar territory when it comes to judging whether

admission or exclusion of a particular item of evidence would better serve the interest of fair admin-

istration of justice.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/

or publication of this article.

322 International Criminal Justice Review 22(3)

Funding

The author received no financial support for the research, authorship, and/or publication of this

article.

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Bio

Yue Ma is a faculty member in the Department of Law and Police Science at John Jay College of Criminal

Justice. He is interested in the comparative study of legal and criminal justice issues.

Ma 325