The Exclusionary Rule and the Moral Integrity of Prosecutors

By: Randy E. Barnett*

(c) Copyright 1987 Prosecutor's Brief

Prosecutor's Brief: News Journal of the California District
Attorney's Association, Volume 10, No. 3, Summer 1987

The Morality of Prosecution

                 When I was a prosecutor in Chicago it always struck me as terribly odd that defense attorneys would blithely assume a position of moral superiority to prosecutors. After all, prosecutors are ethically bound to prosecute only those whom they have probable cause to believe are guilty. Defense attorneys, on the other hand, are supposed to defend their clients' interests whether their clients are guilty or innocent. I never knowingly prosecuted a defendant I believed to be innocent and my discretion in this regard was one important reason for my original choice to be a prosecutor.

               Let me emphasize that I am not asserting the moral superiority of prosecutors, but rather that prosecutors, unlike defense attorneys, always have a duty to see that justice is done both in the system as a whole and in the case at hand. In short, prosecutors must always strive to take the side of right. Consequently, I never saw any reason for the smugness I have observed among some members of the defense bar-with one exception. While I was in the State's Attorney's Office and since I left to be a law professor, I have noticed a disturbing exception to the norm that the prosecutor should always take the side of right; an exception caused by the existence of the "exclusionary rule" that is used to enforce the Fourth Amendment.

The Insidious Effects of the Exclusionary Rule

                An exclusionary rule that mandates the suppression of reliable evidence of guilt due to the violation of a suspect's Fourth. An exclusionary rule that mandates the suppression of reliable evidence of guilt due to the violation of a suspect's Fourth Amendment rights creates an unavoidable conflict of interest for all prosecutors. Amendment rights creates an unavoidable conflict of interest for all prosecutors. On the one hand, prosecutors are supposed to obtain the conviction of the guilty. On the other hand, they ought not to be a party to a constitutional rights violation. Pursuing either of these legitimate objectives will quite likely frustrate the other. This conflict of interest has two pernicious consequences for the moral integrity of prosecutors. One is personal and the other is institutional.

                    On the personal side, young prosecutors are forced to choose between their desire to see justice done to criminals and their desire to preserve and protect the constitutional rights of all citizens. This requires them to weigh the immediate and extreme injustice of letting a particular felon go free against the remote chance that their actions in a given case will seriously weaken the constitutional rights of the public. Because the adverse affects on constitutional rights are both speculative and cumulative, some prosecutors, like all too many citizens, resolve this conflict of interest by favoring justice in the case at hand at the expense of Fourth Amendment rights.

                Over time a prosecutor who has made this choice may become numb to the violation of constitutional rights. A prosecutor's head may say that such rights deserve respect, while his or her heart may tell a different story. Prosecutors who emotionally side with the offending police officer may unintentionally or intentionally encourage such conduct or even participate in it. Personal corruption can take many forms. A prosecutor who would never accept a free cup of coffee can eventually become thoroughly corrupted with respect to respecting the rights of criminal suspects. I do not make this observation lightly. My experience leaves me with a very high regard for prosecutors as a group. Dedicated prosecutors, however, will recognize what I am describing, if only as a tendency that they have successfully resisted. What they may not realize is that this phenomenon is the tragic, but well-hidden underside of the exclusionary rule.

              The institutional consequences of this conflict of interest may be even more insidious. To obtain convictions and to protect the convictions they have obtained on appeal, prosecutors are forced to take the side of the officer who has violated constitutional rights by repeatedly urging judges to expand exceptions to the rule mandating exclusion. Prosecutors' advocacy of weakening constitutional rights occurs both in court and in state legislatures. True, there is nothing unethical about this advocacy and most of these arguments are rejected by judges and legislators. But as thousands upon thousands of criminal cases are litigated, prosecutors' arguments inevitably come to be accepted by some judges in the exceptional case. And protecting the rights of criminal defendants is never a politically popular stance for an elected representative.

               Once established, these exceptions create gaps in the rules that give bad cops a justification for their actions. Even more important, by blurring the lines between constitutional and unconstitutional behavior, they cause good cops to become confused about what they should be doing. For nearly every judicial contortion introduced into the law of search and seizure, there was an earlier prosecution argument urging that a narrow exception be made in a particular case. Thus, prosecutor's offices as much as judges are an institutional source of vague or complex standards that cannot effectively guide conduct in the field.

                 The creation of a "good faith exception" to the exclusionary rule is an example of this development. Obviously this exception long urged by prosecutors helps them to convict the guilty. But just as obviously it fails to inform police officers of what is expected of them and serves to weaken the protection of constitutional rights available to protect the innocent. In the long run, prosecutors must bear a heavy responsibility for the unravelling of important constitutional protections.

             Let me hasten to point out that some conflicts of this type are inevitable in any legal system that regulates the admissibility of evidence. The rule against hearsay, for example, is an "exclusionary rule" that is intended to ensure justice in the long run, while sacrificing some probative information in particular cases. Trial lawyers on both sides are always looking to enlarge the pool of admissible evidence. Their immediate interests in a particular case routinely and reasonably take precedence over their concerns for the law of evidence as a whole. The modern evolution of evidence law from a body of prohibitions and exceptions to a set of discretionary "standards" reflects this impetus.

               Still, while the conflict between justice in the long run and justice in the case at hand is inevitable, it should be minimized or eliminated whenever possible. Thereafter, assuming that it can deter misconduct as well as the exclusionary rule, we must prefer an alternative that puts prosecutors on the morally "right" side of both issues-an alternative that permits prosecutors to pursue the guilty defendant without defending the guilty cop.

Restitution for Rights Violations: An Alternative to Exclusion

                Happily, such an alternative is available. It was suggested by former Chief Justice Berger in a concurring opinion in the famous case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (403 U.S. 388 [1971]). There he proposed replacing the exclusionary rule with "an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated." (Id. at 411)

               In my view such a system must have the following features. (1) It must be administered by the judiciary, not the police. Only judges would have the requisite independence to effectively scrutinize police conduct. (2) Complainants only should have the right to a jury trial The jury trial is a vital counterweight to the system. It is complainants and not the police department who require this protection in these types of cases. (3) Police departments, not individual officers, should be liable for even good faith violations. If an officer did not act in good faith, however, police departments should be entitled to seek reimbursement from that officer through a more formal judicial proceeding that would fully preserve the officer's rights,

including the right to a jury trial. (4) Litigation costs must be minimized by holding police departments strictly liable for the conduct of their employees and by adopting "small claims court" or "workers' compensation"-type procedures to avoid the vast expenses of federal civil rights actions. (5) A statutorily determined range of awards should be set that would be great enough to give an incentive to complainants to bring the action, but not so high as to deter judges from making awards. As we have done elsewhere in the criminal law, aggravating circumstances justifying higher compensation should also be specified. (6) Indigent complainants should have access to a court-appointed "prosecutor." This lawyer may be either "public" or private. (7) Finally, it must provide a legal forum for all citizens, regardless of whether the search in question revealed evidence that led to criminal charges. Innocent victims of police misconduct must have standing.

             The exclusionary rule is a court-created remedy for the violation of constitutional rights. I am simply proposing a different remedy to replace it, albeit one that is likely to require legislation to establish. Restitution to victims does not require a prosecutorial choice between pursuing either a guilty defendant or an offending cop. Unlike today, prosecutors need not choose which "right" to pursue, but may vigorously pursue both at the same time.

             Moreover, all prosecutors know that for every illegal search that produces evidence of guilt, there are countless unheralded searches that produce nothing. Is it not bizarre that only those citizens who are actually arrested for a crime may obtain relief for violations of their Fourth Amendment rights? This proposal would, for the first time, give the countless innocent victims of police misconduct an effective remedy.

Objections to Restitution

             Of course, this proposal raises many questions that deserve serious attention. The most common objection is that forced compensation will not adequately deter police misconduct. While I cannot summarize here the extended analysis I have presented elsewhere (See Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory L.J. 937 [1983]), I believe I have shown that this legitimate concern is unfounded. Restitution would be at least as effective a deterrent as exclusion.

           Suffice it to say that hitting the police bureaucracy where they live-in their budget-would provide a far more effective incentive for the department to regulate its own conduct than the remote possibility that someday some judge might suppress some evidence that might affect a future prosecution. Sergeants and other supervisors can influence conduct in the field far more effectively than judges or prosecutors-if they have the incentive to do so. Further, by greatly expanding the pool of potential claimants, the financial exposure of a department for the errors of its officers is likely to be significant. Moreover, giving standing to complainants who are not also criminal defendants in a system that exclusively heard such complaints would establish parity between the credibility of complainants and that of officers. Finally, such a system would eliminate the conflict of interests that judges now face when deciding whether to discipline the police by releasing into the community a potentially dangerous defendant.

              Some might take the opposite tact and argue that police will become overcautious -that they will pursue criminals with less zeal than now. Of course, since officers would not be personally liable, this would only occur as a result of controls established by departments. And, in some instances, this would be highly desirable. Still, police departments are under enormous political pressure to catch (as opposed to convict) criminals. This is one reason why the exclusionary rule, while a genuine deterrent, is of only limited value. I think we can expect departments to prioritize the risks they are willing to run depending upon the nature of the case at hand.

              When discussing deterrence, we must always be careful to avoid what Harold Demsetz has called "the Nirvana Approach." Perfect or even "optimal" deterrence of police misconduct is impossible to obtain. Our approach must always be comparative. There is certainly no reason to assume that the exclusionary rule either optimally or perfectly deters police misconduct. There is good reason to believe that a system of restitution would be superior.

               Some argue that permitting prosecutors to "profit" from police misconduct by using illegally seized evidence depreciates constitutional rights. Such criticism is misplaced. Our centuries old history of civil liability undermines any claim that monetary compensation cheapens individual rights. Those who maintain otherwise should discuss this matter with plaintiff's lawyers who specialize in personal injury cases.

               Moreover, criminal prosecutions are not justified because they benefit prosecutors, but because they presumably serve other important ends. Some say that the end is deterrence; others say it is justice. Regardless of what ends justify the institution of criminal law, if the criminal law is justified, then its ends are achieved by successfully prosecuting the guilty and acquitting the innocent. Therefore, by undermining these ends, excluding reliable and probative evidence of guilt entails serious costs. If the important goal of preventing police misconduct can be achieved as effectively by means that do not incur these costs, then these means are to be preferred.

              On the other hand, it is the public that demands that the police "get tough" on criminals by "bending the rules." If the general public is to benefit from convicting the guilty, then "its" tax-funded police department and not victims of police misconduct should incur the costs of this policy. And there is no reason why the costs of police misconduct should be imposed on the general public by means of acquitting guilty defendants.

The Opportunity for Change

               Ironically, the growth of a "good faith exception" to the exclusionary rule has created an enormous political opportunity for reform. As long as the exclusionary rule remained vital, many conscientious defenders of constitutional rights vigorously opposed its replacement with another system they perceived, wrongly in my view, to be a weaker deterrent. As the exclusionary rule itself is seriously weakened, however, a system of restitution becomes increasingly more attractive.

             Prosecutors will have to take the lead on this issue. Police departments will obviously be opposed. Their opposition, however, itself provides evidence of the deterrent effect of compensatory relief as compared with the exclusion of probative evidence. True, elected prosecutors are unaccustomed to proposing legislation that is opposed by the police. This only illustrates the difference in the roles that prosecutors and police ought to have in the justice system. And, since a system of restitution cannot be used to obstruct a conviction, the criminal defense bar can be expected to oppose strenuously any such proposal notwithstanding the lawyers' fees that such a system would surely generate. This too illustrates the difference in roles that defense attorneys and prosecutors are supposed to play.

              Finally, the exclusionary rule and federal civil rights suits are the only legal sanctions for and deterrent of police misconduct that presently exist. As prosecutors' demands to loosen the exclusionary rule are met, I think they are morally obliged to take the lead on this issue. Prosecutors' vigorous advocacy of a compensatory system will establish that their legal arguments for weakening the exclusionary rule were not just special pleading for incompetent police work, but were made, instead, in pursuit of what should always be the prosecutor's objective: justice. If prosecutors truly care about constitutional rights then now is the time to demonstrate this concern. Our constitutional rights are not all that is at stake. So is the moral integrity of prosecutors. 

*Randy E. Barnett is a law professor at the Illinois Institute of Technology, Chicago-Kent College of Law. A graduate of Harvard Law School, he served from 1977-81 as an Assistant State's Attorney in Cook County, Illinois, assigned to the Criminal Prosecutors Bureau. Professor Barnett co-edited "Assessing the Criminal Restitution, Retribution, and the Legal Process" (1977). He directs the Law and Philosophy Program of the Institute for Humane Studies at George Mason University and is an Adjunct Scholar of the Cato Institute.