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The Exclusionary Rule

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Should the Exclusionary Rule be abolished? What alternative remedy would you favor to prevent police abuse? Is this debate now largely symbolic? Please discuss.

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. However, in some circumstances at least, the exclusionary rule may also be considered to follow directly from the constitutional language, such as the Fifth Amendment's command that no person "shall be compelled in any criminal case to be a witness against himself" and that no person "shall be deprived of life, liberty or property without due process of law."(Calabresi, 2003)

The exclusionary rule is grounded in the Fourth Amendment and it is intended to “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”(U.S. Const.) The exclusionary rule is also designed to provide a remedy and disincentive, which is short of criminal prosecution in response to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel.

The exclusionary rule judges the admissibility of evidence based on deontological ethics; that is, it is concerned with how evidence is acquired, rather than what the evidence proves. For this reason, in strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action—this evidence is known as "fruit of the poisonous tree"—can be thrown out from a jury (or be grounds for a mistrial if too much information has been irrevocably revealed).

The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors. (Lynch, 2000) The Exclusionary Rule is a piece of criminal law that should remain. It curbs the chances that evidence illegally obtained could be used against you in a criminal case. It is for this reason that the Exclusionary Rule should remain unmodified. It is a rule that works for everyone.

References
1). Calabresi, Guido. 2003. "The Exclusionary Rule." Harvard Journal of Law and Public Policy 26.
2). U.S. CONST. amend. IV
3). Lynch, T. (2000). In Defense of the Exclusionary Rule. Harvard Journal of Law & Public Policy, 23(3), 711. Retrieved December 2, 2009, from Questia database: http://www.questia.com/PM.qst?a=o&d=5001776279

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