Welcome to the Blogosphere
posted by Dave Hoffman
To Joel Jacobson, and his new blog “Judging Crimes.” Jacobson, an assistant attorney general in New Mexico, has a number of great posts up already, including this empirical investigation into deterrence and the Fourth Amendment. Here is a taste:
The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police. Lower court judges accept this as fact for a very good reason: the Supreme Court says so. But the rest of us can be little more skeptical. Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary’s fourth amendment jurisprudence has had a deterrent effect.
My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline. As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.
December 12, 2005 at 11:49 am
Posted in: Criminal Law
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Responses (2)
Daniel J. Solove - December 12, 2005 at 12:29 pm
Joel’s blog is interesting, but the post you quote strikes me as relying on a very dubious empirical premise. Raising a Fourth Amendment challenge has almost become standard operating procedure for defense attorneys. Most challenges fail, but they still are brought. I might be missing something, but this strikes me as an invalid way to measure the deterrent effect of the exclusionary rule.
FXKLM - December 12, 2005 at 3:34 pm
That’s some very poor reasoning. If improperly gathered evidence is excluded, that creates an incentive to challenge the constitutionality of a search. Of course we would expect the number of challenges to rise. It makes absolutely no sense to use the number of constitutional challenges as a proxy for the number of unconstitutional searches.
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