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.
Great work, Mike! It’s good to see a colleague pursuing this work. These concepts were all household words where I grew up.
Thought I’d share this with you:
The University of Chicago Law Review
Volume 75 Fall 2008 Number 4
Demisesquicentennial
Studying the Exclusionary Rule: An Empirical Classic
Albert W. Alschuler
at page 1373
Oaks described the earliest of these studies.44 In 1963, Stuart Nagel surveyed police chiefs, prosecutors, judges, defense attorneys, and ACLU officers in forty-seven states.45 The overwhelming majority agreed that the exclusion of unlawfully obtained evidence reduced illegal searches.46 Mapp had been decided in 1961, and Nagel asked whether police compliance with the Fourth Amendment had increased or decreased between 1960 and 1963. Seventy-five percent of the respondents
in states without an exclusionary rule prior to Mapp said that compliance had increased, but only 57 percent of the respondents in the
states that had an exclusionary rule prior to Mapp said so.47 Similarly, Michael Katz reported that 64 percent of the prosecutors, 62 percent of the defense attorneys, and 78 percent of the judges surveyed in North
Carolina agreed that the “[e]xclusion of evidence is an effective way of reducing the number of illegal searches.”48
44 See Oaks, 37 U Chi L Rev at 679–81 (cited in note 2).
45 See Stuart S. Nagel, Testing the Effects of Excluding Illegally Seized Evidence, 1965 Wis L Rev 283, 283–84.
46 Id at 298.
47 Id at 287.
48 Michael Katz, The Supreme Court and the States: An Inquiry into Mapp v. Ohio in North
Carolina. The Model, the Study and the Implications, 45 NC L Rev 119, 134 (1966).
Interesting juxtaposition. The trend would seem headed more likely in the direction of prosecutorial predilection for police violations of constitutional rights. Consider the Patriot Act, with its rather sweeping intrusions into what had theretofore been protections for citizens of the US. One event, albeit large in scope and impact, resulted in the vast majority of Congress agreeing to substantial changes in what had been constitutional protections. Some actually bothered to read a few pages. Most did not.
With the political winds blowing as they are, and the country looking down the barrel of dire economic times, it is less and less likely that citizens are going to be overly concerned about “lawyer-types” who decry the withering of constitutional protections. Factor in the trend in state Supreme Court races around the country (even the ‘run against your record’ system in place in Illinois has resulted in humongous spending in our neighbor to the South in the current election) and it becomes even less likely that jurists will be willing to overrule aggressive police search techniques.
Like it or not, I expect more decisions characterizing such police efforts to ferret out crime as resulting in “harmless” errors made by the gendarmes who have to deal daily with those we would rather not invite to dinner at our place. And I expect few will consider such rulings to be of concern. In an age of sound-bite politics, largely numbing the populace into voting (or at least political TV ad) aversion, a ‘protect the Constitution’ philosophy may increasingly fall on deaf ears.
I share yours and Charles’ concerns about the continuing demise of constitutional protections. Ask Suzy Q. Public and she will no doubt tell you she doesn’t mind that her cell phone could be tracked by law enforcement anywhere, anytime and with very little reason, because she herself is not doing anything illegal. If it is a tool to “catch bad guys,” (which is after all, what the police do, she sees it on TV) then it will not harm her and she would rather the police have more tools in their crime-fighting arsenal, than less. How the police actually use those tools? Not that interesting, unless it relates to a traffic ticket (likely her main point of contact with law enforcement). Slippery slope arguments = glazed eyes, deaf ears. My question is this: with an overabundance of material wealth, the illusion of freedom of choice and self-determination (at least, choice as to which of the 50,000 Made-in-China items at Wal-Mart she will select) and underabundance of things like civic education, concern for human rights, a basic understanding of the rule of law — how does one get Suzy Q. to CARE?