The controversy over a “good faith mistake” exception to the exclusionary rule and the 1982 National Institute of Justice study of the effects of the rule in California have focused attention on the “costs” of the rule. This article reviews the NIJ study and seven other relevant studies and concludes that the NIJ study's claim that the rule has a “major impact” on the disposition of felony arrests is misleading and exaggerated. California data show that prosecutors reject only 0.8% (8 in 1,000) of felony arrests because of illegal searches. The effect of the rule is concentrated in drug cases in which the rejection rate by prosecutors is 2.4% (not 30%, as suggested by the NIJ study), but the rejection rate for non-drug arrests is less than 0.3%, and the rate is even lower for violent crimes. Even if one looks at the cumulative effect of the rule through all stages of the felony process in California, only about 2.35% of felony arrests are lost because of illegal searches, and this is a high-side estimate based on potentially atypical samples. Moreover, studies of “lost arrests” have not differentiated between arrests resulting from bona fide crime investigations and arrests that resulted from arbitrary searches or arrests that were made to seize contraband, for harassment, or for purposes other than obtaining a conviction. The author concludes that available data show the cost of the rule is marginal, especially in view of the ambiguous nature of the lost arrests. Moreover, it is doubtful that a good faith mistake exception would save any substantial proportion of the arrests lost following illegal searches. In particular, an exception for searches conducted under an improper warrant would save only a negligible proportion of lost arrests.

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

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.

https://www.jstor.org/stable/pdfplus/828200.pdf

The Societal Cost of the Exclusionary Rule: An Empirical Assessment

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations.

The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence

Herbert Packer’s models of the criminal process are criminal justice theorems, often the foundation of student introduction to the field in introductory textbooks. To date, there is little empirical analysis of the conceptual foundations of the process-based models, namely that courts are more efficient through the utilization of plea bargains, while an increase in trials necessarily decreases efficiency. The present results reveal wide variability in Florida circuit criminal court efficiency within and between circuits from 2004/05 to 2010/11. Regression analysis revealed that the year over year difference in both plea bargain (β = .14) and trial percentage (β = .13) significantly predicted (p < .05) year over year changes in efficiency, but explained a small amount of the variance (R
 2 = .026) controlling for other factors (total model R
 2 = .58–.62). These results show there is more capacity for trials within the Florida courts, and an increase in trials does not negatively impact court efficiency as expected but that other factors are far more relevant in explaining changes in efficiency outcomes. Furthermore, the Packer “assembly line” analogy, a basic tenet of the criminal process, is not found: plea bargains do not strongly predict or explain court efficiency, with structures playing a greater role in court outcomes than the processes conceptualized by Packer. The application to courts and impact on criminal justice education are discussed.

Testing the Packer Theorem: The Efficiency of Florida’s Criminal Circuit Courts

In 1984, the U.S. Supreme Court approved a good faith exception to the exclusionary rule in cases where a warrant was wrongfully issued, but the Court has declined to extend it to warrantless cases. Because the majority of searches fall under exceptions to the warrant clause and thus are conducted without warrants, providing a good faith defense to constitutional challenges in these caseswould in effectrepeal the exclusionary rule. Such legislation has been proposed in Congress, but it is unlikely to pass. Even if it did pass, however, it would not change police accountability to the Fourth Amendmentmuch, because the exclusionary rule probably only minimally deters police misconduct, a matter that is difficult to explore empirically. Furthermore, the proposed legislation would apply only to federal and not state law enforcement-with exceptions for the federal police agencies that the bill's sponsors do not like. Despite the fact that the effect of this law would be minimal if it were passed, such legislat...

Congress is (Not) Repealing the Exclusionary Rule! Symbolic Politics and Criminal Justice (Non)Reform

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Liberals, Conservatives, and the Exclusionary Rule

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Lane V. Sunderland

Papers

Liberals, Conservatives, and the Exclusionary Rule

The Exclusionary Rule: A Requirement of Constitutional Principle