Does (Did) (Should) the Exclusionary Rule Rest on a Principled Basis Rather Than an Empirical Proposition

Abstract

[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has not only intensified-but engulfed the fourth amendment exclusionary rule itself. It is now clear that once a provision of the Bill of Rights, such as the guaranty against unreasonable searches and seizures, is deemed "fundamental to the American scheme of justice," it applies to the states to the same extent that it has been interpreted to apply to the federal government. Although some members of the Court have balked at "incorporating" a specific provision of the Bill of Rights into fourteenth amendment due process "jot-for-jot" and "bag and baggage," especially in the jury trial cases, this has come to be the prevailing view. Thus, critics of Mapp v. Ohio have had to direct their fire at the efficacy, validity and constitutional basis of the fourth amendment exclusionary rule as well-and they have done so with great force.

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