The Exclusionary Rule In Comparative Perspective

Adam Liptak has an interesting article about the exclusionary rule and how the American use of the rule differs from other countries. He begins with a comparison to Canada, which requires that evidence obtained in an illegal search be excluded only if admitting the evidence would cause greater harm to the integrity of the justice system then excluding it would. On its face, this seems unexceptionable, but of course this kind of balancing test is only as good as the judge applying it. Interestingly, the case Liptak cites — which involved the admission of cocaine found in a search the trial judge conceded was unconstitutional — is not a very attractive one. I could accept the Canadian rule if it developed in a way that gave deference to the state when it comes to violent offenses but almost always excluded evidence in cases such as The War On (Some Classes of People Who Use Some) Drugs, which have both a strong tendency toward promoting unconstitutional police behavior and whose social benefits are much less clear. It will be interesting to see how the Supreme Court of Canada rules.

One puzzle I have with the article is that I’m not sure how meaningful it is to claim that Canada has “balancing” with respect to the exclusionary rule but the United States does not. As Liptak mentions towards the end, the Supreme Court has developed various exceptions to the exclusionary rule: inevitable discovery, “good faith,” 2006’s “no knock” exception. Perhaps the balancing in the United States is more tilted towards defendants, but I don’t think that it makes much sense to discuss a “mandatory” American exclusionary rule; judges have plenty of tools to admit evidence they feel should be admitted. It’s also highly unlikely that a judge’s perception of whether excluding the evidence would affect the integrity of the justice system is irrelevant to her considerations about whether evidence should be excluded (or, for that matter, about whether a search is “reasonable); it’s just more explicit in the Canadian case.

I’ve discussed the question of whether a strong exclusionary rule makes sense before — in the actually existing political circumstances of the United States, I favor it. One thing to add, though, is that American exceptionalism in terms of formal civil liberties has to be considered alongside American exceptionalism in terms of the harshness of punishment (both in terms of the time people convicted of various crimes spend in jail, how often they’re convicted, and the economic and social consequences of having been in prison.) It’s hard to argue that the overall balance in the United States is excessively tilted in favor of the individual against the state.