Washington and Lee Law Review, Vol. 32, No. 4 (Fall 1975), pp. 881-917


“The great body of the law of evidence consists of rules that operate to exclude relevant evidence.” The most controversial of these rules are those which prevent the admission of probative evidence because of the irregular manner in which the evidence was obtained. Depending on whether the method of obtaining violated a provision of positive law, irregularly obtained evidence may be separated into two classes. Evidence obtained by methods which meet legal requirements but contravene some moral or ethical principle is unfairly obtained evidence. Evidence obtained in violation of a legal right or immunity is improperly obtained evidence, regardless of whether moral standards also have been breached.

Depending on the authority of the person procuring it, improperly obtained evidence may be grouped into two broad categories. The first consists of evidence secured by agents of government and may be divided into two subcategories: evidence obtained in violation of constitutional guarantees against unreasonable search and seizure (illegally obtained evidence), and evidence obtained in violation of the statutory or common law authority of the agent (unlawfully obtained evidence). The second category consists of evidence procured by a private party. This category also is composed of two subcategories: evidence obtained in violation of the criminal law, and evidence obtained in violation of tort or contract law. Evidence improperly obtained by a private party is wrongfully obtained evidence.

There have never been any rules of evidence operating to exclude unfairly obtained evidence. Of the rules authorizing suppression of improperly obtained evidence, the Exclusionary Rule is the best-known. The Exclusionary Rule regulates the use of evidence illegally obtained under the federal Constitution. Under the Rule, evidence obtained by violating federal constitutional protections against unreasonable search and seizure—that is, evidence seized by a government agent in contravention of the fourth amendment—is inadmissible in a court of law. Proclaimed for the first time in 1886 in a forfeiture proceeding, extended to federal criminal trials in 1914 and to state criminal trials in 1961, the Exclusionary Rule, since its inception, has been perhaps the most hotly debated of the many rules of evidence which act to suppress the truth. While criticism of the Rule is hardly new, it has become increasingly popular over the past five years, and legal periodicals are plentifully supplied with current articles advocating abolition or dilution of the Rule or proposing “alternatives.” This flurry of adverse commentary is the result of the recent appearance of two influential attacks on the Rule. The first of these was a 1970 law review article which condemned the Rule as ineffectual in deterring police lawlessness. The second was the scathing denunciation of the Rule made by Chief Justice Burger in his dissenting opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In his 16-page opinion the Chief Justice blasted the Exclusionary Rule as “conceptually sterile” and urged that it be replaced with an effective tort remedy against the government employing the offending officer.

Caught unprepared for the surge of criticism, supporters of the Exclusionary Rule have been slow in rallying to its defense. Recently, however, two important law review articles have been published in support of the Rule. One of the articles advances powerful arguments in favor of the proposition that the Rule is constitutionally required. The other article undertakes to prove from empirical data that the Rule does deter the police from engaging in unconstitutional search and seizure practices.

This Article, which represents still another defense of the Exclusionary rule, will examine the validity of several arguments frequently raised by opponents of the Rule. Part I will explore the Historical Argument. This argument, a favorite among critics of the Rule, attacks the Rule on the ground that it is inconsistent with practices of ancient vintage. Part II will assess the merits of the Comparative Argument, which criticizes the Rule because it has not been adopted in other countries which have a legal tradition similar to that of the United States.