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Paul Sullivan - One of the best experts on this subject based on the ideXlab platform.
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the posse comitatus act and the fourth amendment s Exclusionary Rule
Social Science Research Network, 2017Co-Authors: Patrick Walsh, Paul SullivanAbstract:The United States continually calls upon the U.S. military to deploy inside the United States to respond to disasters, to protect citizens in times of war, and even to perform acts of law enforcement during civil unrest. At the same time, Americans have a long standing and inherent distrust of the use of the military on U.S. soil, particularly for law enforcement activities. These two competing interests: to use the military in times of need but restrict its domestic use for law enforcement, has created a mix of court cases that apply different tests to determine when the military has exceeded its legal authority to operate inside the United States. The court’s primary tool for restricting the use of the military as domestic law enforcement is to use the Fourth Amendment Exclusionary Rule to suppress evidence gathered in violation of the restrictions on the domestic use of the military. Recently, the Supreme Court has reevaluated and restricted the application of the Exclusionary Rule. The Court has emphasized that the Exclusionary Rule should be judiciously applied to suppress evidence of criminal activity. Courts need to follow this new trend and recognize that the Exclusionary Rule should not be used to suppress evidence derived from the domestic use of the military. This paper will examine the use of the military inside the United States and the recent restrictions on applying the Exclusionary Rule to deter government violations of law, providing insight to each of them by exploring where they intersect, in the courts when criminal defendants seek the application of the Exclusionary Rule to exclude evidence gathered while the military was engaged in an impermissible act of law enforcement. Examining recent military operations inside the United States and looking at the recent development of the Exclusionary Rule, there is a clear answer. The Fourth Amendment’s Exclusionary Rule is misused when courts apply it to the military’s domestic law enforcement activity.
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The Posse Comitatus Act and the Fourth Amendment’s Exclusionary Rule
SSRN Electronic Journal, 2017Co-Authors: Patrick Walsh, Paul SullivanAbstract:The United States continually calls upon the U.S. military to deploy inside the United States to respond to disasters, to protect citizens in times of war, and even to perform acts of law enforcement during civil unrest. At the same time, Americans have a long standing and inherent distrust of the use of the military on U.S. soil, particularly for law enforcement activities. These two competing interests: to use the military in times of need but restrict its domestic use for law enforcement, has created a mix of court cases that apply different tests to determine when the military has exceeded its legal authority to operate inside the United States. The court’s primary tool for restricting the use of the military as domestic law enforcement is to use the Fourth Amendment Exclusionary Rule to suppress evidence gathered in violation of the restrictions on the domestic use of the military. Recently, the Supreme Court has reevaluated and restricted the application of the Exclusionary Rule. The Court has emphasized that the Exclusionary Rule should be judiciously applied to suppress evidence of criminal activity. Courts need to follow this new trend and recognize that the Exclusionary Rule should not be used to suppress evidence derived from the domestic use of the military. This paper will examine the use of the military inside the United States and the recent restrictions on applying the Exclusionary Rule to deter government violations of law, providing insight to each of them by exploring where they intersect, in the courts when criminal defendants seek the application of the Exclusionary Rule to exclude evidence gathered while the military was engaged in an impermissible act of law enforcement. Examining recent military operations inside the United States and looking at the recent development of the Exclusionary Rule, there is a clear answer. The Fourth Amendment’s Exclusionary Rule is misused when courts apply it to the military’s domestic law enforcement activity.
David M Jones - One of the best experts on this subject based on the ideXlab platform.
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hudson v michigan and the decline of the Exclusionary Rule
Police Practice and Research, 2012Co-Authors: David M JonesAbstract:Although the Exclusionary Rule has been an important part of American jurisprudence for over a century, it has long been under attack. This paper traces the evolution of the doctrine and demonstrates that, for many years, its impact has been narrowed in its application. The paper concludes with a concern for its continued viability in the American justice system.
Craig M. Bradley - One of the best experts on this subject based on the ideXlab platform.
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reconceiving the fourth amendment and the Exclusionary Rule
Law and contemporary problems, 2010Co-Authors: Craig M. BradleyAbstract:I INTRODUCTION Mapp v. Ohio, decided in 1961, comprised two holdings. (1) The first, and more controversial at the time, applied the Exclusionary Rule to the states, overruling Wolf v. Colorado, (2) decided just twelve years before. But it was the second holding--"[A]ll evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in ... court" (3)--that has led to the "criminal procedure revolution." And it is the second holding that is currently under attack by the Supreme Court. As a result of this second holding, the Supreme Court evidently felt compelled to set forth just what it was that the Constitution requires so that the police could follow the Rules and avoid evidentiary exclusion. Thus it was that, in a series of cases through the 1960s and continuing to this day, the Supreme Court began the uniquely American practice of declaring "Rules of criminal procedure" on a case-by-case basis, (4) rather than through a comprehensive code. (5) This is contrary to the practice of all other countries of which I am aware, including our common-law mentors, the British, who have nationally applicable codes of criminal procedure. (6) It arguably follows from the American "Rulemaking" practice, based as it is directly on the Constitution, that every search or interrogation violation is necessarily a violation of the Fourth or Fifth Amendments--and so the Supreme Court has repeatedly assumed. (7) Consequently, any evidence obtained in violation of the Constitution should be excluded, for it may seem logical that unconstitutionally obtained evidence should not be available to the government at trial. If, however, the Rules of criminal procedure are based on a code, it does not seem so obvious that evidence obtained by violating some provision of it should not be available to the government at trial. Perhaps that is why, as the U.S. Supreme Court has observed, "the automatic Exclusionary Rule applied in our courts is ... 'universally rejected' by other countries." (8) I have long supported the American mandatory Rule. During my seven years as a federal prosecutor, including time as an Assistant United States Attorney in Washington, D.C., I could see that the Rule's mandatory nature forced police and federal agents to think about the Rules before they acted. It caused both federal and local law-enforcement authorities to train their agents in the constitutional Rules in order to afford evidentiary exclusion. In fact, my criminal procedure professor, Charlie Whitebread, was also the FBI's criminal procedure professor. Nor was it my impression that any significant number of cases were lost as a result of the Rule, especially prosecutions of violent felonies. (9) Nevertheless, the Supreme Court has made it clear that it is dissatisfied with the mandatory aspect of the Mapp Rule. In two recent cases, Hudson v. Michigan (10) and Herring v. United States, (11) the Court has indicated that the Rule should be changed but has stopped short of mandating a broad alteration. Although I oppose such a change, I do recognize that perfectly civilized and progressive countries in the world, as well as the European Court of Human Rights, do not feel that a mandatory Exclusionary Rule for search and seizure violations is necessary. (12) In this article I discuss the Hudson and Herring decisions, the practices of other countries, and various previous suggestions for Exclusionary-Rule reform. Then, I set forth a reconception of the Exclusionary Rule, as well as the constitutional principles that gave rise to it. These reconceptions suggest a roadmap to Exclusionary reform that might reconcile the factions on the Court (with Justice Kennedy in the middle) who strongly support and strongly oppose the current mandatory Rule. I propose that the Exclusionary Rule apply only in cases in which it can be said not only that the police broke the Fourth or Fifth Amendment Rules, but that their conduct in doing so was negligent, judged case-by-case--in other words, when the search was "unreasonable," which is all that the Fourth Amendment forbids. …
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Reconceiving the Fourth Amendment and the Exclusionary Rule
Law and contemporary problems, 2010Co-Authors: Craig M. BradleyAbstract:In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the Exclusionary Rule and at other times, including in it's stated holding, suggested that it was only reducing the Rule's force in a minor way. This article reconceives the Exclusionary Rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court's past approach, or it's proposal in Herring, is to exclude evidence only when there is a violation of the Court's Fourth Amendment Rules and that violation is "unreasonable" or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the Rule while maintaining it as an effective deterrence to police misconduct.
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red herring or the death of the Exclusionary Rule
2009Co-Authors: Craig M. BradleyAbstract:This article discusses Herring v. United States in which the Court held, 5-4, that evidence found after the defendant was arrested due to faulty information provided by a police from another county would not be excluded. The holding was narrow: "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the Exclusionary Rule should not apply." However, the opinion contains much language suggesting that the Court is prepared to abandon the Rule, which has been the foundation of criminal procedure since 1961. This article discusses just what Herring held, and what its implications may be.
Patrick Walsh - One of the best experts on this subject based on the ideXlab platform.
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the posse comitatus act and the fourth amendment s Exclusionary Rule
Social Science Research Network, 2017Co-Authors: Patrick Walsh, Paul SullivanAbstract:The United States continually calls upon the U.S. military to deploy inside the United States to respond to disasters, to protect citizens in times of war, and even to perform acts of law enforcement during civil unrest. At the same time, Americans have a long standing and inherent distrust of the use of the military on U.S. soil, particularly for law enforcement activities. These two competing interests: to use the military in times of need but restrict its domestic use for law enforcement, has created a mix of court cases that apply different tests to determine when the military has exceeded its legal authority to operate inside the United States. The court’s primary tool for restricting the use of the military as domestic law enforcement is to use the Fourth Amendment Exclusionary Rule to suppress evidence gathered in violation of the restrictions on the domestic use of the military. Recently, the Supreme Court has reevaluated and restricted the application of the Exclusionary Rule. The Court has emphasized that the Exclusionary Rule should be judiciously applied to suppress evidence of criminal activity. Courts need to follow this new trend and recognize that the Exclusionary Rule should not be used to suppress evidence derived from the domestic use of the military. This paper will examine the use of the military inside the United States and the recent restrictions on applying the Exclusionary Rule to deter government violations of law, providing insight to each of them by exploring where they intersect, in the courts when criminal defendants seek the application of the Exclusionary Rule to exclude evidence gathered while the military was engaged in an impermissible act of law enforcement. Examining recent military operations inside the United States and looking at the recent development of the Exclusionary Rule, there is a clear answer. The Fourth Amendment’s Exclusionary Rule is misused when courts apply it to the military’s domestic law enforcement activity.
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The Posse Comitatus Act and the Fourth Amendment’s Exclusionary Rule
SSRN Electronic Journal, 2017Co-Authors: Patrick Walsh, Paul SullivanAbstract:The United States continually calls upon the U.S. military to deploy inside the United States to respond to disasters, to protect citizens in times of war, and even to perform acts of law enforcement during civil unrest. At the same time, Americans have a long standing and inherent distrust of the use of the military on U.S. soil, particularly for law enforcement activities. These two competing interests: to use the military in times of need but restrict its domestic use for law enforcement, has created a mix of court cases that apply different tests to determine when the military has exceeded its legal authority to operate inside the United States. The court’s primary tool for restricting the use of the military as domestic law enforcement is to use the Fourth Amendment Exclusionary Rule to suppress evidence gathered in violation of the restrictions on the domestic use of the military. Recently, the Supreme Court has reevaluated and restricted the application of the Exclusionary Rule. The Court has emphasized that the Exclusionary Rule should be judiciously applied to suppress evidence of criminal activity. Courts need to follow this new trend and recognize that the Exclusionary Rule should not be used to suppress evidence derived from the domestic use of the military. This paper will examine the use of the military inside the United States and the recent restrictions on applying the Exclusionary Rule to deter government violations of law, providing insight to each of them by exploring where they intersect, in the courts when criminal defendants seek the application of the Exclusionary Rule to exclude evidence gathered while the military was engaged in an impermissible act of law enforcement. Examining recent military operations inside the United States and looking at the recent development of the Exclusionary Rule, there is a clear answer. The Fourth Amendment’s Exclusionary Rule is misused when courts apply it to the military’s domestic law enforcement activity.
Avani Mehta Sood - One of the best experts on this subject based on the ideXlab platform.
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cognitive cleansing experimental psychology and the Exclusionary Rule
Georgetown Law Journal, 2015Co-Authors: Avani Mehta SoodAbstract:The Exclusionary Rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant’s crime. However, using a combination of doctrinal analysis, social psychology theory, and original experimental data, this Article proposes a more cognitively complicated picture of how the Rule may actually operate. In cases of egregious crime that people are highly motivated to punish, the Exclusionary Rule and its continually expanding exceptions present a fertile entry point for “motivated cognition,” a psychological process through which decision makers unknowingly reason toward their desired outcomes, seemingly within the constraints of the law.In this series of experiments, when research participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime, they unknowingly construed the circumstances of the case in a manner that enabled them to invoke an exception to the Exclusionary Rule — thereby “cognitively cleansing” the tainted evidence to admit it and achieve their punishment goals without flouting the law. By contrast, when an identical illegal search uncovered evidence of a less reprehensible crime, participants were significantly more likely to suppress the evidence, construing the circumstances of the case to support the use of the Exclusionary Rule without exception. Even people’s judgments about the investigating police officers, who conducted exactly the same illegal search in both scenarios, depended on the egregiousness of the crime that the search happened to uncover. Critically, however, introducing awareness-generating instructions that alerted participants to the possibility that criminal egregiousness could drive their suppression judgments significantly curtailed the influence of this doctrinally irrelevant factor.Contributing to a growing body of empirical research on cognitive pitfalls in legal decision making, the results of these studies highlight why the justice system should not turn a blind eye to covertly motivated applications of the Exclusionary Rule, or any legal doctrine that is susceptible to the motivated cognition effect. Aside from the benefits of stability and legitimacy that arise from applying legal Rules in a predictable and transparent manner, the finding that decision makers set aside their personal punishment goals to more objectively adhere to the law when an instructional intervention cognitively equipped them to do so reflects a conscious choice worth recognizing. Illustrating how the tools of social psychology can be mobilized to reveal new normative dimensions of longstanding doctrinal debates and stimulate data-driven prescriptions for reform, this Article proposes a path toward more informed, consistent, and cognitively realistic applications of the law.
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cognitive cleansing experimental psychology and the Exclusionary Rule
Georgetown Law Journal, 2015Co-Authors: Avani Mehta SoodAbstract:The Exclusionary Rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant’s crime. However, using a combination of doctrinal analysis, social psychology theory, and original experimental data, this Article proposes a more cognitively complicated picture of how the Rule may actually operate. In cases of egregious crime that people are highly motivated to punish, the Exclusionary Rule and its continually expanding exceptions present a fertile entry point for “motivated cognition,” a psychological process through which decision makers unknowingly reason toward their desired outcomes, seemingly within the constraints of the law. In this series of experiments, when research participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime, they unknowingly construed the circumstances of the case in a manner that enabled them to invoke an exception to the Exclusionary Rule—thereby “cognitively cleansing” the tainted evidence to admit it and achieve their punishment goals without flouting the law. By contrast, when an identical illegal search uncovered evidence of a less reprehensible crime, participants were significantly more likely to suppress the evidence, construing the circumstances of the case to support the use of the Exclusionary Rule without exception. Even people’s judgments about the investigating police officers, who conducted exactly the same illegal search in both scenarios, depended on the egregiousness of the crime that the search happened to uncover. Critically, however, introducing awareness-generating instructions that alerted participants to the possibility that criminal egregiousness could drive their suppression judgments significantly curtailed the influence of this doctrinally irrelevant factor.