[This was a reply to this article on the anniversary of Mapp v. Ohio, originally posted here. Note a few of the petty replies, including some need to bring up shooting OBL in a "sarcastic" way (kidding on the square) that is pretty off-topic and of limited value to boot. Such a tone is found in other comments on that and other message boards, resulting in a need to be extra careful to in effect be sure not to insult people's feelings. It is pretty tedious after awhile especially since some show no apparent desire to do the same or even seriously consider what you say.]
Justice Stevens once suggested the value of such rules:
Finally, Justice Tom Clark (who later wrote an influential law review article suggesting its application to the right of choice over abortion, pre-Roe) also noted in Mapp v. Ohio (which it bears noting that moderate/conservative Justice Stewart also later defended) that the rule was necessary to "the right to privacy" protected by the Fourteenth Amendment. Such a right, along with the exclusionary rule, is ridiculed by some, particularly some who think it was a creation of Griswold v. Connecticut,* but both are more firmly part of our system of liberty than all that. [A good article on the ruling can be found here.]
Exclusionary rules are found throughout our system. Various things cannot be used, including information discussed in a confessional, with a spouse, a lawyer and items wrongly seized from one's body like a bullet or even one's blood without proper procedures followed. Exceptions are involved in various cases, but limits are the name of the game in all things. Even free speech.
Happy Birthday, Mapp v. Ohio. [June 19, 1961]
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* Clark was the only justice that joined Justice Douglas' opinion without further comment, three justices also resting on the Ninth Amendment, two others on due process.
"The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."Scholarship has suggested that "exclusionary" rules have a long pedigree, illegitimately obtained evidence leading to failure of prosecution. The ends justifies the means was not the rule in a nation where an overly invasive government was a major reason for rebellion. John Adams once noted the spark of the Revolution was a case involving abuse of the warrant power. The cases largely remained local in large part because criminal cases did -- there was much less involvement of appeals courts, particularly federal appeals courts, which back in the day (particularly before the Fourteenth Amendment) had much less chance (or even jurisdiction) to decide upon such matters.
Justice Stevens once suggested the value of such rules:
For at least two reasons, the exclusionary rule is a better remedy than a civil action against an offending officer. Unlike the fear of personal liability, it should not create excessive deterrence; moreover, it avoids the obvious unfairness of subjecting the dedicated officer to the risk of monetary liability for a misstep while endeavoring to enforce the law. Society, rather than the individual officer, should accept the responsibility for inadequate training or supervision of officers engaged in hazardous police work.The rule is also of longstanding as a matter of Supreme Court doctrine. Justice Holmes in 1920, applying it to the federal government, noted without it:
It reduces the Fourth Amendment to a form of words. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.It is not too surprising that a conservative would thus respect such a rule, particularly those who oppose government intrusion in respect to certain clear cases where the law provides a barrier to the government. The ability to use it without making it impossible (in the least) to prosecute also makes it quite reasonable for a former prosecutor to believe so as well.
Finally, Justice Tom Clark (who later wrote an influential law review article suggesting its application to the right of choice over abortion, pre-Roe) also noted in Mapp v. Ohio (which it bears noting that moderate/conservative Justice Stewart also later defended) that the rule was necessary to "the right to privacy" protected by the Fourteenth Amendment. Such a right, along with the exclusionary rule, is ridiculed by some, particularly some who think it was a creation of Griswold v. Connecticut,* but both are more firmly part of our system of liberty than all that. [A good article on the ruling can be found here.]
Exclusionary rules are found throughout our system. Various things cannot be used, including information discussed in a confessional, with a spouse, a lawyer and items wrongly seized from one's body like a bullet or even one's blood without proper procedures followed. Exceptions are involved in various cases, but limits are the name of the game in all things. Even free speech.
Happy Birthday, Mapp v. Ohio. [June 19, 1961]
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* Clark was the only justice that joined Justice Douglas' opinion without further comment, three justices also resting on the Ninth Amendment, two others on due process.