Hostname: page-component-78c5997874-t5tsf Total loading time: 0 Render date: 2024-11-18T10:33:14.521Z Has data issue: false hasContentIssue false
  • English
  • Français

The Societal Cost of the Exclusionary Rule: An Empirical Assessment

Published online by Cambridge University Press:  20 November 2018

Peter F. Nardulli
Get access

Abstract

A key criticism that has emerged in the debate over the search and seizure exclusionary rule is that it exacts heavy societal costs in the form of lost prosecutions and that such costs outweigh any demonstrated social benefits. This article examines the costs of three exclusionary rules using data collected for 7,500 cases in a nine-county study of criminal courts in three states. It emphasizes motions to suppress physical evidence but for comparative purposes also includes motions to suppress confessions and identifications. The results show that the various exclusionary rules exact only marginal social costs. Motions to suppress physical evidence are filed in fewer than 5% of the cases, largely drug and weapons cases, while serious motions to suppress identifications and confessions are filed in 2% and 4% of the cases. The success rate of motions to suppress is equally marginal. Successful motions to suppress physical evidence occur in only 0.69% of the cases, while successful motions to suppress identifications or confessions occur much less often. Moreover, not all who successfully suppressed evidence escaped conviction, especially when only an identification or a confession was suppressed. In all, only 46 cases—less than 0.6% of the cases studied—were lost because of the three exclusionary rules combined, most of them involving offenses that would have incurred less than six months’ imprisonment or first offenders. Finally, the impact of unsuccessful motions on subsequent plea bargaining was found to be marginal; only unsuccessful motions to exclude confessions resulted in any real sentencing concessions.

Type
Articles
Information
American Bar Foundation Research Journal , Volume 8 , Issue 3 , Summer 1983 , pp. 585 - 609
Copyright
Copyright © American Bar Foundation, 1983 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 232 US. 383 (1914).Google Scholar

2 Indeed, by 1960 the exclusionary rule had been adopted by nearly half the states. See Elkins v. United States, 364 US. 206, 224–32 (1960).Google Scholar

3 367 US. 643 (1961).Google Scholar

4 For a thorough review of the history and development of the exclusionary rule see Yale Kamisar, Does (Did)(Should) the Exclusionary Rule Rest on a “Principled Basis” Rather than an “Empirical Proposition”? 16 Creighton L. Rev. 565 (1983). See also Steven Schlesinger, Exclusionary Injustice: The Problem of Illegally Obtained Evidence ch. 2 (New York: Marcel Dekker, 1977).Google Scholar

5 Mallory v. United States, 354 U.S. 449 (1957); Escobedo v. Illinois, 378 US. 478 (1964); Miranda v. Arizona, 384 US. 436 (1966).Google Scholar

6 United States v. Wade, 388 U.S. 218 (1967) (lineups); Gilbert v. California, 388 U.S. 263 (1967) (identifications).Google Scholar

7 Canon, Bradley C., Is the Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky. L.J. 681, 683 (1974).Google Scholar

8 Because illegally obtained identifications and confessions are less credible as evidence, they have remained in the background of the current controversy.Google Scholar

9 The Attorney General's Task Force on Violent Crime: Final Report, Recommendation, 40, 55–56 (Washington, D.C.: Department of Justice, 1981).Google Scholar

10 Supra note 7.Google Scholar

11 Dallin, Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 668 (1970).Google Scholar

12 Id. at 669.Google Scholar

13 403 US. 388,416 (1971).Google Scholar

14 Kamisar, supra note 4.Google Scholar

15 Id. at 598 (footnotes omitted).Google Scholar

16 See also Sunderland, Lane V., The Exclusionary Rule: A Requirement of Constitutional Principle, 69 J. Crim. L., Criminology, & Police Sci. 141 (1978);Schrock, Thomas S. & Welsh, Robert C., Up from Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn. L. Rev. 251 (1974);Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw. U.L. Rev. 740, 776–90 (1974).Google Scholar

17 414 U.S. 338 (1974).Google Scholar

18 Canon, Bradley C., Ideology and Reality in the Debate over the Exclusionary Rule: A Conservative Argument for Its Retention, 23 S. Tex. L.J. 559, 563 (1982); see also Critique, supra note 16, at 776–77.Google Scholar

19 Oaks, supra note 11; Michael Ban, The Impact of Mupp v. Ohio on Police Behavior, delivered at the annual meeting of the Midwest Political Science Association, Chicago, 1973; id., Local Courts v. the Supreme Court: The Impact of Mapp v. Ohio, delivered at the annual meeting of the American Political Science Association, New Orleans, 1973; Spiotto, James E., Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Stud. 243 (1973); Canon, supra note 7; Canon, Bradley C., Testing the Effectiveness of Civil Liberties Policies at the State and Local Levels: The Case of the Exclusionary Rule, 5 Am. Politics Q. 57 (1977);Effect of Mapp v. Ohio on Police Search–and–Seizure Practices in Narcotics Cases, 4 Colum. J. L. & SOC. Probs. 87 (1968).Google Scholar

20 Canon, Bradley C., The Exclusionary Rule: Have Critics Proven That It Doesn't Deter Police? 62 Judicature 398 (1979);Critique, supra note 16, at 744–64.Google Scholar

21 See United States v. Janis, 428 US. 433, 450–52 n.22 (1976) (after reviewing the various empirical studies of the rule's deterrent effects and criticisms of those studies, Justice Blackmun, writing for the Court, concluded: “The final conclusion is clear. No empirical researcher, proponent or opponent of the rule, has yet been able to establish with any assurance whether the rule has a deterrent effect”); Stone v. Powell, 428 U.S. 465, 492 n.32 (1976) (“the evidence [on deterrence] derived from recent empirical research is still inconclusive”). See also Canon, supra note 18, at 560–72; Donald L. Horowitz, The Courts and Social Policy 220–54 (Washington, D.C.: Brookings Institution, 1977).Google Scholar

22 E.g., Posner, Richard A., Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 Wash. L. Rev. 635 (1982). But see Morris, Arval, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash. L. Rev. 647 (1982).Google Scholar

23 See supra text accompanying note 13.Google Scholar

24 See, e.g., Kamisar, Yale, The Exclusionary Rule in Historical Perspective: The Struggle to Make the Fourth Amendment more than ‘an Empty Blessing,’ 62 Judicature 337, 341.Google Scholar

25 Report of the Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions Rep. No. CDG-79-45 (19 Apr. 1979).Google Scholar

26 Id. at 14.Google Scholar

27 Id. at 8.Google Scholar

28 Id. at 11.Google Scholar

29 Id. at 13.Google Scholar

30 National Institute of Justice, Criminal Justice Research Report—The Effects of the Exclusionary Rule: A Study in California (mimeo.; Washington, D.C.: Department of Justice, National Institute of Justice, 1982).Google Scholar

31 Id. at 2.Google Scholar

32 Id. at 10 and table 1.Google Scholar

33 Id. at 2, 13.Google Scholar

34 Id. at 2.Google Scholar

35 Davies, Thomas Y., A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 A.B.F. Res. J. 611, infra, at 633.Google Scholar

36 Id. at 639.Google Scholar

37 Id. at 645-46.Google Scholar

38 103 S. Ct. 2317, 2342 n.13 (White, J., concurring) (decided June 8, 1983). But see Davies, supra note 35, at 617.Google Scholar

39 The results of the larger study of these nine county criminal courts are presented in Peter F. Nardulli, James Eisenstein, & Roy B. Flemming, Sentencing as a Sociopolitical Process, Final Report to the National Institute of Justice, Grant No. 81-IJ-CX-0027 (June 1982).Google Scholar

40 The defendant-incident was the unit of analysis for this study. If more than one charge arose from the same incident, the other charges would simply be listed as “second offense charged” or “third offense charged.” A defendant charged with a subsequent offense from a separate incident would show up as a separate case.Google Scholar

41 A more detailed description of sampling procedures can be found in Nardulli et al., supra note 39, at ch. 2. Note that a sampling problem in Dauphin County, Pennsylvania, led us to weight several hundred diversion cases (largely DWI cases) to assure their proper representation in the sample. Thus, while we sampled only 766 defendants in Dauphin County, the weighted figure is 1,058. Correspondingly, while only 7,475 total cases were sampled, the weighted number is 7,767.Google Scholar

42 E.g., in California, prosecutors screen out a substantial number of arrests by declining to file a complaint. See National Institute of Justice, supra note 30.Google Scholar

43 See supra note 41.Google Scholar

44 Whenever there was some ambiguity or doubt as to whether a motion was actually filed, we coded the motion variable as missing. This was a relatively rare occurrence, but it could happen when part of a file was found to be missing or when coders had reason to doubt that the file was intact.Google Scholar

45 The criminal record variable is a composite measure incorporating data on number of arrests, convictions, and incarcerations. The variables were combined and weighted using factor analysis. Nardulli et al., supra note 39, at 2–24, report the results of the factor analysis. The distinction between defendants with moderate and serious criminal records is based on this composite measure. Data on first offenders were removed, and the remaining defendants were divided into two roughly equal groupings based on scores on the composite criminal record variable. Defendants with higher weighted rankings of arrests, convictions, and incarcerations were assigned to the “serious” category, the remainder to the “moderate” category.Google Scholar

46 The figures in parentheses in tables 5 and 6 are the proportions with the St. Clair public defender cases removed.Google Scholar

47 None of the motions granted in offenses against persons involved exceptionally serious cases such as murder, rape, armed robbery, or even unarmed robbery. The motions granted were in indecent exposure, simple battery, and aggravated assault cases.Google Scholar

48 See Davies, Thomas Y., Affirmed: A Study of Criminal Appeals and Decision-making Norms in a California Court of Appeal, 1982 A.B.F. Res. J. 543. In the year and jurisdiction studied, there were approximately 10,000 convictions, id. at 577, but only 544 criminal appeals were decided on the merits, id. at 556. Of those, 151 raised an illegal search issue but only 8 were successful, id. at 616 table 9.Google Scholar

49 This analysis cannot measure the full impact of the exclusionary rules on plea bargaining because one defense tactic may be not to file the motion in exchange for plea concessions. Obviously, this cannot be measured quantitatively with this data set. However, while this hidden impact may be a reality, one must question the bargaining leverage one obtains from a motion that has such a low success rate when made. Prosecutors are well aware of the potential for success, and it is unlikely that they would be buffaloed into many concessions, especially for marginal cases. If the case for suppression is good, it is unlikely that the defense attorney will pass up a chance for a quick dismissal.Google Scholar

50 The offense seriousness measure is essentially the county-specific mean sentence of the offense in our county samples. The criminal record measure is a composite variable derived from a factor analysis of the number of prior arrests, prior convictions, county jail commitments, and penitentiary commitments. More details on the derivation of these measures can be found in Nardulli et al., supra note 39, at 2–23, n.25.Google Scholar

51 Id., ch.6.Google Scholar

52 Canon, supra note 18, at 578.Google Scholar

53 Schlesinger, supra note 4.Google Scholar

54 Id. ch. 4.Google Scholar

55 Id. at 77.Google Scholar

56 Id. at 48.Google Scholar