Consider a case of police misconduct: An officer wants to enter and search a citizen’s home, but has no search warrant, no legal basis to obtain one, and no exigent circumstances to justify entry. The officer enters and searches anyway and, as he suspects, finds contraband. The citizen-turned-criminal-defendant then moves the court for a remedy: suppression of the evidence.
Should the evidence be suppressed? In Herring v. United States, our Supreme Court held that suppression is not an individual right, but rather a last resort. That is, even given a clear constitutional violation, a trial court should suppress evidence only in the rare case of egregious police misconduct, where suppression would deter the misconduct in the future.
Deterrence in this context, however, is an illusion.
A police officer would conduct the illegal search only if he had no other, legal means by which to obtain the contraband. In that case, he can choose to forego the illegal search and get nothing, or conduct the illegal search, get the contraband, and take his chances on suppression. As I argued here, the rational police officer will conduct the illegal search nearly every time.
Now, keep this concept of deterrence in mind and imagine a case of prosecutor misconduct: A prosecutor makes a highly inflammatory religious and racial argument at trial that the court calls egregious, outlandish, and condemnable. The defendant is convicted and then moves the court for a remedy: a new trial.
Should the defendant get a new trial, free of the egregious prosecutorial misconduct? Surely, remanding the case for a retrial would deter the prosecutor from making this type of argument in the future, wouldn’t it? As I argued here, yes, of course it would. But, in this case, where deterrence is not only laudable but possible, our Supreme Court takes the opposite position: The deterrence of prosecutorial misconduct is not an appropriate reason to reverse a conviction, and even if the conviction is reversed, the prosecutor gets to retry the defendant again. See, e.g., U.S. v. Hasting; Oregon v. Kennedy.
Why should constitutional remedies be designed to deter police misconduct but not prosecutor misconduct? Is there some meaningful difference between the two governmental actors? Or between the particular constitutional rights being violated? Or between the remedies being requested? And if yes, should that even matter?
One possible justification is that deterring prosecutors is the job of lawyer disciplinary bodies, not the courts. But the problem with this argument is twofold. First, prosecutors largely get a free pass. Empirical studies repeatedly show that between zero and one percent of prosecutor misconduct cases actually result in discipline. And second, police are subject to non-judicial deterrence mechanisms of their own, such as internal investigations and civil rights lawsuits. So, if it’s good for the goose . . .
Perhaps a more realistic explanation is that focusing on deterrence for police misconduct, while ignoring it for prosecutor misconduct, is the path of least resistance toward affirming trial court convictions. Unfortunately, this focus on efficiency produces the harmful and unacceptable byproduct of marginalizing our fundamental rights.
Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.