Compassion, Hatred, and Free Expression

The 2007 Judge William C. Keady Distinguished Lectur

Replacing the Exclusionary Rule: Fourth Amendment Violations as Direct Criminal Contempt

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment\u27s prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens\u27 rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the evidence, and whether the admission of the evidence would seriously damage the integrity of the proceedings. In order to protect citizen\u27s rights, this paper also proposes that Fourth Amendment violations be treated like direct criminal contempt of court. Thus, if a judge determines that there has been a serious Fourth Amendment violation, the offending officer could be summarily punished. Inasmuch as this punishment can be comparatively severe and is directly aimed at the offending officer, it should have a strong deterrent effect. Moreover, since a judge would be empowered to impose a penalty with minimal process beyond that which would have already taken place, it would be a more reliable deterrent than even the existing exclusionary rule