The Rise and Fall of the Constitutional Exclusionary Rule in the United States

28 Pages Posted: 30 Jan 2015

Date Written: 2010

Abstract

In 1961 the United States Supreme Court held in Mapp v. Ohio that the exclusion of evidence obtained as a result of an unconstitutional search or seizure is required in state criminal trials as a matter of federal constitutional law. Two further cases decided in 1964 and 1966 created federal constitutional exclusionary rules for illegally obtained confessions based on the constitutional right to counsel and the right against compelled self-incrimination. The evidentiary exclusionary rules created in these landmark cases continue to be the principal tool for enforcing constitutional rights applicable in criminal prosecutions. Over the past fifty years, however, the constitutional foundations of the exclusionary rules have shifted and their scope has narrowed. At one time the exclusion of evidence obtained as a result of a violation of the constitution was understood to be required as a constitutional mandate. The Supreme Court has now explicitly rejected that view in favor of an interpretation that regards the exclusionary rules as judicially created prophylactic remedies whose purpose is to deter future violations. Consistent with this understanding of exclusion as a forward-looking preventive measure, the Court has limited the application of the exclusionary rule to circumstances where the deterrent benefits of exclusion are considered to outweigh the costs in terms of lost evidence.

Suggested Citation

Cammack, Mark, The Rise and Fall of the Constitutional Exclusionary Rule in the United States (2010). American Journal of Comparative Law, Vol. 58, Supp, 2010, Available at SSRN: https://ssrn.com/abstract=2557179

Mark Cammack (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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