Remedies for Constitutional Violations


1 Know that the exclusionary rule bans the use of illegally obtained evidence to prove guilt. Understand how Fourth, Fifth, Sixth, and Fourteenth Amendment rights can be violated by bad practices in law enforcement.

2 Appreciate the history of the exclusionary rule. Understand that it is no longer a “bright-line” rule banning all evidence collected illegally.

3 Know that there’s no constitutional right to have evidence that was collected illegally excluded at trial. Understand how courts exclude evidence to preserve judicial integrity and to deter officers from breaking the law.

4 Know that courts must balance the deterrent effect of the exclusionary rule against the social costs of applying it. Understand that the exceptions to the “fruit of the poisonous tree” doctrine allow more evidence into court to prove guilt.

5 Know the exceptions under which evidence excluded from the main prosecution can be used in other parts of the legal process.

6 Understand and appreciate the significance of the knock-and-announce and good-faith exceptions to the exclusionary rule.

7 Know that the social costs and deterrent effect of the exclusionary rule are based on assumptions, not empirical evidence. Understand that empirical research suggests that the social costs of the exclusionary rule may not be as severe as we commonly believe; criminal cases are rarely dismissed due to illegally obtained evidence.


Mapp v. Ohio 367 U.S. 643 (1961)

Hudson v. Michigan 547 U.S. 586 (2006)

Herring v. U.S. 129 S.Ct. 695 (2009)

The well-worn debate over the exclusionary rule is framed in terms of the extent we should be willing to allow the guilty to go free so as to expansively interpret the rights of accused criminals. Setting the guilty free is an accepted price for both long-range deterrence against police violations of constitutional rights, as well as the expressive commitment to fairness in the criminal justice system. However, wrongly convicting the innocent is not part of that deal. The proverbial ten guilty men are not meant to be set free for their own sake, but rather so that the one innocent person goes free.… By instituting constitutional protections for actually guilty criminal suspects the exclusionary rule creates a higher burden of proof for actually innocent defendants.

—Jacobi (2011, 589)

Of course there has to be an exclusionary rule. I don’t want this to be a police state. There have to be guidelines. The problem is the guidelines aren’t clear. I believe that the Supreme Court is not making the law clear. They take a tough situation in which a police officer must act in an instant, they think about it for five months, and come out seven to six. What kind of system is this for making law?

—Lieutenant Karczewski, Chicago Police Department (Bradley 1993, 40)

Should the culprit go free because the constable blundered?

—People v. Defore (1926)

We hold that all evidence obtained by searches and seizures in violation of the Constitution is … inadmissible in a state court.

—Mapp v. Ohio (1961)

Suppression of evidence … has always been our last resort, not our first impulse.

—Hudson v. Michigan (2006)

The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct.…

—Herring v. U.S. (2009), Majority

When I was a very junior member of a Minneapolis mayor’s committee to examine police misconduct, our committee held a neighborhood meeting to educate residents about our work. But I learned a lot more than the residents. One resident that night made a comment and then asked a great question. His comment: “We all know what happens when we break the law—we get arrested and prosecuted.” His question: “What I want to know is what happens when the police break the law against us? What recourse do we have?”

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