An article co-authored by Samuel Estreicher, Dwight D. Opperman Professor of Law, and Daniel Weick ’09, and published in the Summer 2010 University of Missouri-Kansas City Law Review, proposes an alternative to the exclusionary rule. Under that rule, which arose from Fourth Amendment protections against unreasonable search and seizure, a judge may rule that improperly obtained evidence is inadmissible. In “Opting for a Legislative Alternative to the Fourth Amendment Exclusionary Rule,” Estreicher and Weick suggest a regulated experiment in which Congress creates law allowing federal, state, and local law enforcement to opt out of the rule, as long as they create internal mechanisms deterring police misconduct. Adherence to such a scheme would be voluntary, and the Department of Justice would create evaluation standards. A compensation system for victims of Fourth Amendment violations would also be implemented.
“As the [Supreme] Court is losing faith in the workability of the exclusionary rule,” Estreicher and Weick conclude, “we believe it has created a space for Congress to enter and promote Fourth Amendment compliance. A remedial system that avoids the problems of granting immediate benefits to criminals—up to and including a ‘get-out-of-jail-free card’—would have the virtue of preserving important constitutional liberties while avoiding the counter-intuitive, and socially corrosive, result of rewarding criminals for police mistakes.”
Weick, who co-authored the article as a research fellow at the Law School while on paid furlough from his law firm, presented the work earlier this year at a criminal law faculty workshop.
Posted on June 21, 2010