Exclusionary rule in the spotlight during
fall lecture by Emory professor

by Jennnifer Farish

Emory law professor Morgan Cloud was the third speaker in the annual James Otis Lecture series. Cloud looked the history and role of the exclusionary rule during his Sept.13 lecture.

Morgan Cloud, a distinguished law professor and scholar of Fourth Amendment issues, traced the debate as to whether the exclusionary rule should be seen as a constitutional rule or as a judicial rule. And, Cloud said, an examination of the rule must include a look at the balance between the cost of the exclusionary rule and its benefits.

The exclusionary rule is a legal principle holding that evidence collected or analyzed in violation of the U.S. Constitution cannot be used in criminal prosecution. It was designed to provide a remedy and disincentive, short of criminal prosecution, for prosecutors and police who illegally gather evidence in violation of the Fourth and Fifth Amendments.

In his lecture, Cloud used several Supreme Court decisions to examine the way the rule has evolved and changed since its creation in the late 1800s. Cloud traced the origin of the rule to the 1886 case of Boyd v. United States. As the first case to deal directly with Fourth Amendment issues, Boyd resulted in a decision by the U.S. Supreme Court that upheld the argument that evidence gained by an unlawful search could not be used by prosecutors in court.

“What is fundamental in this decision by the court is that it defined Fourth Amendment rights as really strong, powerful rights,” Cloud said.

Before Boyd, the law governing the use of evidence in American courts stemmed primarily from English common law, which did not place much weight on the way evidence was obtained and did not limit the use of evidence obtained illegally. Approximately 28 years later, the exclusionary rule was formally adopted in the case of Weeks v. United States, in which the Supreme Court agreed that the exclusionary rule enforces the protection against “unreasonable searches and seizures” in federal courts.

U.S. Supreme Court Associate Justice William R. Day, who delivered the opinion, said the intent of the Fourth Amendment is to create restraints upon the exercise of power of the United States and federal officials and “to forever secure the people, their person, houses, papers, and effects against all unreasonable searches and seizures under the guises of law.” The court further concluded that the Constitution should not and does not permit criminal convictions based on evidence obtained by unlawful seizure and forced confessions.

Despite the strong wording establishing it, the exclusionary rule has never been free of controversy, and opponents of the rule argue for alternatives such as prosecuting or bringing civil charges against government agents who violate an individual’s Fourth Amendment rights.

For Cloud, the issue comes down to the balance between government and individual rights.

“Understanding constitutional theory is important, but the ultimate struggle is to find the line between government and making our society a decent place to live,” he said.

Cloud was the third speaker in the James Otis Lecture series, which is sponsored by the National Center for Justice and the Rule of Law at the UM School of Law. The lecture was held during the NCJRL fall Trial Judges Conference on search and seizure. Thomas Clancy, director of the NCJRL, said the lecture is named for James Otis because he is one of the most overlooked contributors to America’s independence.

In 1761, Otis passionately argued against the British writs of assistance that allowed British authorities to enter any colonist’s home without advance notice or probable cause. As the nearly five-hour oration ended, John Adams said, “Every man of a crowded audience appeared to me to go away as I did ready to take up arms against the writs of assistance. Then and there was the first scene of the first act of the opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.”

Adams later authored the model used to draft the Fourth Amendment, creating a direct link between Otis and Fourth Amendment rights, Clancy said. “He was, in many ways, the first to ignite the American Revolution, and it was his words that inspired the Fourth Amendment,” Clancy said.

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