CHAPTER TEN
REMEDIES FOR CONSTITUTIONAL VIOLATIONS I:
THE EXCLUSIONARY RULE
Learning Objectives
After studying this chapter, students should be able to:
1. Know that the exclusionary rule bans the use of illegally obtained evidence to prove guilt.
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
5. Know the exceptions under which evidence excluded from the main prosecution can be
used in other parts of the legal process.
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.
Lesson Plan
I. The Exclusionary Rule
Learning Objective 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.
Media Tool
“Herring v. United States” http://www.fas.org/sgp/crs/misc/R40189.pdf
o Congressional Research Service article about the Herring case and its legal implications
o Discussion: What is the Herring case about? What are its implications? What
is the importance of this case?
Class Discussion/Activity
Discuss the ways in which the Fourth, Fifth, Sixth, and Fourteenth Amendment rights
can be violated by law enforcement agents. Ask students which cases are most
affected by the exclusionary rule? Why is the Fourteenth Amendment important in
regards to the exclusionary rule?
A. The exclusionary rule bans “good evidence” obtained by “bad methods.”
1. “Good evidence” means evidence that can help prove the defendant’s guilt.
(1) Fourth Amendment ban on unreasonable searches and seizures
(3) Sixth Amendment right to counsel
(4) Fifth and Fourteenth Amendment rights to due process of law
II. History of the Exclusionary Rule
Learning Objective 2: Appreciate the history of the exclusionary rule. Understand that it is no
longer a “bright–line” rule banning all evidence collected illegally.
Media Tool
“Enforcing the Fourth Amendment: The Exclusionary Rule”
http://constitution.findlaw.com/amendment4/annotation06.html
o Findlaw.com discussion of the exclusionary rule
o Discussion: What are the alternatives to the exclusionary rule discussed on the
website? How did the exclusionary rule develop? What are the foundations of
the exclusionary rule?
Class Discussion/Activity
How has the exclusionary rule developed over time? What rulings are most surprising
regarding the exclusionary rule? In what ways is the implementation of the
exclusionary rule today different than when it was first created?
See Assignment 1
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What If Scenario
What if the outcome had been different in Wolf v. Colorado? Mapp v. Ohio?
A. There is no mention of the exclusionary rule in the Constitution; but James Madison
believed it was implied in judicial power.
B. 1914 – Weeks v. U.S.: The U.S. Supreme Court created the exclusionary rule.
2. It covered only private papers and belongings.
C. 1949 – Wolf v. Colorado: The Court applied the Fourteenth Amendment, but not the
1. Established the good-faith exception to the exclusionary rule.
III. Justifications for the Exclusionary Rule
Learning Objective 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, and appreciate that the deterrent effect of the
exclusionary rule must be balanced against the social costs of applying it.
Class Discussion/Activity
Divide students into three groups. Have each group briefly research one of the three
justifications for the exclusionary rule. Have the groups each present their research in
class and vote to see which one is the most valid.
A. SCOTUS has focused its interrogation on the exclusionary rule on three justifications:
1. Constitutional right – The Fourth, Fifth, Sixth, and Fourteenth Amendment rights
wouldn’t mean anything without the exclusion. (Weeks v. U.S.)
3. Deterrence – Prevent unconstitutional conduct by government officers.
a. According to SCOTUS excluding illegally obtained evidence isn’t a constitutional
right, it’s a prophylactic rule.
B. The “remedial objective” is to deter police from violating an individual’s constitutional
rights. But, enforcing the rule comes at a cost.
1. The social cost of the rule—freeing guilty people, undermining the prosecution’s case,
and obstructing the search by keeping good evidence out of court—led the SCOTUS to
limit its application to cases it believes are most likely to deter police misconduct.
See Assignment 2
See Assignment 3
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IV. The Exceptions to the Exclusionary Rule
Learning Objective 4: Understand that the exceptions to the “fruit of the poisonous tree”
doctrine allow more evidence into court to prove guilt.
Learning Objective 5: Know the exceptions under which evidence excluded from the main
prosecution can be used in other parts of the legal process.
Class Discussion/Activity
Have students (in groups or individually) research the exceptions to the exclusionary
rule and create a presentation for the class.
What If Scenario
What if there were no exceptions to the exclusionary rule? Would a large number of
criminals go free?
A. The scope of the rule is restricted because of the belief that the social costs of freeing
guilty people and of undermining the prosecution’s case are too high and keep good
evidence out of court.
B. Attenuation
1. Tainted evidence is admissible if the totality of circumstances in the case proves that the
“poisonous” connection between police illegality and the evidence has weakened enough.
C. Independent source
1. Tainted evidence is admissible if after violating the Constitution, officers get the
same evidence in a totally separate lawful action.
D. Inevitable discovery
1. Tainted evidence is admissible if police law-breaking produced the evidence but the
evidence would’ve been discovered eventually anyway.
E. Nontrial proceedings (collateral use) exception
1. Include bail hearings; Illegally obtained evidence is admissible in all nontrial settings
(bail hearings, preliminary hearings, grand jury proceedings, habeas corpus
proceedings).
F. Trial proceedings: Cross-examination
1. The prosecution can use illegally obtained evidence to undermine defense witnesses’
(including the defendant’s) credibility.
Media Tool
“Hudson v. Michigan”
http://www.oyez.org/cases/2000-2009/2005/2005_04_1360
o Oyez.com brief of the case and links to oral arguments and full opinion
o Discussion: Aside from the ruling itself why is this case important? Do you
think that it will have effects on law enforcement agencies? What kind of
cases do you think this ruling will affect the most?
See Assignment 4
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G. The “knock-and-announce” exception
1. Permits the admission of evidence seized during searches of homes, even when
officers violate the “knock-and-announce” rule.
What If Scenario
What if there were no “knock-and-announce” exception to the exclusionary rule?
H. The good-faith exception
1. This exception applies only to evidence obtained by search warrants that later turn out
to be illegal.
2. Evidence obtained during execution of an illegal search warrant is admissible only if
3. The reason is there’s no deterrent effect if officers honestly and reasonably believed
the warrants were lawful.
V. Social Costs and Deterrence: Empirical Findings
Learning Objective 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.
What If Scenario
What if research indicated that a large percentage of those defendants who were not
charged with a crime were released because of the exclusionary rule?
A. Is the social cost of the exclusionary rule too high?
2. It’s hard to conduct empirical research so we have to rely on speculation.
3. Both sides have plausible arguments.
a. In favor of the rule
(1) Officers will try to avoid illegal searches because evidence may be excluded.
b. Opposed to the rule
(2) Officers know the rule is rarely applied
4. Studies indicate that the rule affects only a small proportion of cases.
5. A nationwide survey of 800 criminal justice officials indicated that:
a. They don’t believe the exclusionary rule is a significant impediment to crime control.
See Assignment 5
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d. It reflects the values of the Fourth Amendment.
6. Perhaps the strongest argument in its favor is that it helps to ensure judicial integrity.
Lecture Notes
The exclusionary rule was created by the U.S. Supreme Court to enforce constitutional rights. It
is not a right in itself. The Bill of Rights does not explain the remedies that judges should use when
someone’s rights are violated. The term “bad methods” refers to police actions and procedures that
violate Fourth, Fifth, Sixth, and Fourteenth Amendment rights. The term “good evidence” is not
meant to imply that the evidence was collected using good methods, only that the evidence is
Until the 20th century, the only remedies for constitutional violations were private lawsuits.
In 1914, the Supreme Court created the exclusionary rule but applied it only to federal law
enforcement. The Supreme Court established that unreasonable searches and seizures performed
by state officials violate the due process clause of the Fourteenth Amendment in 1949, and
finally applied the exclusionary rule to the actions of state officers in Mapp v. Ohio (1961).
There are exceptions to the exclusionary rule: collateral use (non-trial proceedings such as
bail and grand jury hearings); impeachment during cross-examination; the attenuation doctrine;
the independent source doctrine; the inevitable discovery doctrine; the good faith exception and
the “knock-and-announce” exception.
The exclusionary rule has social costs and courts seek to mitigate them by defining
Key Terms
exclusionary rule: The rule that illegally seized evidence cannot be admitted in criminal trials.
(p. 384)
“bad methods”: Police actions and procedures to obtain evidence that violate the Constitution.
(p. 384)
deterrence justification: The justification that excluding evidence obtained in violation of the
Constitution prevents illegal law enforcement. (p. 389)
prophylactic rule: A protective procedure against violations of constitutional rights. (p. 390)
social cost of the rule: Costs of the exclusionary include freeing guilty people and undermining
the prosecution’s case by keeping good evidence out of court. (p. 391)
independent source exception: The exception to the exclusionary rule where police violate the
constitution trying to obtain evidence but in a separate action, aside from the illegal one, lawfully
get the same evidence. (p. 393)
inevitable discovery exception: The exception to the exclusionary rule that allows the
admission of illegally obtained evidence if the government would have eventually obtained the
evidence by legal means anyway. (p. 393)
case-in-chief: The part of the trial where the government presents its evidence to prove the
defendant’s guilt. (p. 394)
impeach: To undermine the believability of a witness’s testimony. (p. 394)
Assignments
1. Ask students their opinion about the value of the exclusionary rule. What values does the rule
attempt to balance? Does it have a negative impact on crime control? Does it have a positive
2. Have students research and write a paper about the history of the exclusionary rule. Have
3. Have students research the arguments for and against the exclusionary rule. Have them take