Just came across this in an old file: On the Fourth Amendment, my letter to the editor to Chronicles magazine (March 1996), regarding Larry Pratt’s comments on the exclusionary rule. My letter’s text is below; Pratt’s response is in the pdf:
In his December essay, “The Mark of the Beast,” Larry Pratt implies that those who oppose unconstitutional searches and seizures by the government should be in favor of the exclusionary rule. But such a rule, whereby probative (i.e., valid) evidence may not be introduced in court if it was obtained in violation of the Fourth Amendment, is not required by the Constitution, nor was it favored by the Founders, as Pratt intimates. In fact, not until 1914, in the Supreme Court case Weeks v. United States, was an exclusionary sanction applied to evidence obtained in violation of the Fourth Amendment, and this case involved federal criminal litigation. It was not until 1952 that the Supreme Court imposed a federal constitutional exclusionary requirement on the states. The exclusionary rule is simply not required by the Constitution, nor is it implied by rules prohibiting certain types of searches and seizures.
Whether the Constitution ought to provide for the exclusion of illegally-obtained evidence is another matter. In my view it should not, because it does not violate the rights of truly guilty criminals to convict them with any probative evidence, no matter how obtained, and because there are better ways to sanction errant police than to let criminals go free. For example, any individual subject to an illegal search or seizure who is not proved guilty should have a cause of action for damages against the police and the state, and the policemen involved ought to be subject to criminal action, if warranted. Further, no advocate of federalism should support federal imposition of an exclusionary rule on states, no matter what one’s view of the merits of the exclusionary rule.
–Stephan Kinsella, Philadelphia
For more on this, see In Defense of Evidence: Against the Exclusionary Rule and Against Libertarian Centralism, with Patrick Tinsley, November 1, 2003, LewRockwell.com; Tinsley, Patrick, Stephan Kinsella and Walter Block. “In Defense of Evidence and Against the Exclusionary Rule: A Libertarian Approach,” Southern University Law Review, Vol. 32.1 (2004), pp. 63-80.
