Exclusionary Rule

Forty years have passed since Mapp v. Ohio. Outright abolition of the exclusionary rule has not yet occurred and seems extremely unlikely absent legislative creation of innovative alternative remedies. Since legislative reforms seem unlikely as well, the exclusionary rule appears to be with us for some time to come. While the argument has been made that abolition would force legislatures to adopt effective alternatives, the state experience prior to Mapp offers evidence to the contrary. Modifications of the rule's current operation, however, might be somewhat more likely.

By now the Supreme Court has embraced most pro-prosecution reforms of the exclusionary rule. Two that have not yet been recognized are a general good-faith exception and a comparative-reprehensibility rule. Thus far the Supreme Court has recognized a good-faith exception only when the police reasonably have relied on a warrant issued by a judge, on a statute passed by a legislature, or on a judicial record maintained by a clerk of the court. At least one circuit court of appeals has gone further, and held that even without statutory or judicial authorization, the exclusionary rule does not apply when illegal police conduct is the product of a reasonable good-faith mistake. Defenders of such a rule argue that police cannot be deterred from conduct they think is legal. Critics respond that the Fourth Amendment itself permits "reasonable" searches and seizures, and that incentives favoring prudence can deter negligence by police, just as negligence by doctors or drivers can be deterred.

The comparative-reprehensibility theory calls for considering the seriousness of the defendant's crimes and the officer's misconduct before excluding evidence. A turn to such a discretionary exclusionary rule has been criticized as inviting trial judges—often elected—to give the police a free hand in serious cases. The comparative-reprehensibility approach does not seem to have as much support as the general good-faith exception. As a matter of legal realism the seriousness of the offense and the extent of police wrongdoing will factor into the decision to some degree even without doctrinal authorization.

Commentators and dissenting justices have put forward a variety of pro-defense proposals. These include:

1. target standing, permitting a third party to invoke the exclusionary rule when the third party was the target of the investigators who illegally searched the victim;
2. a bad-faith exception to the other exceptions, so that when the police knew or should have known that their actions were illegal, the other exceptions would no longer apply;
3. replacing all current exceptions with a single inevitable-lawful-discovery exception, such that if the government failed to prove that the evidence would have been discovered consistently with the Constitution no other exceptions would apply.

All of these reforms have strong support in the deterrence theory. Current Supreme Court precedent, however, rejects each of these approaches.