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Exclusionary Rule and the Meaning of Separation of Powers

NCJ Number
141378
Journal
Harvard Journal of Law and Public Policy Volume: 14 Issue: 1 Dated: (Winter 1991) Pages: 173-204
Author(s)
R W Grant
Date Published
1991
Length
32 pages
Annotation
This legal article contends that the exclusionary rule prohibiting the introduction of evidence obtained by law enforcement officers through unreasonable search and seizure is constitutionally necessary.
Abstract
The author identifies four basic positions with respect to the exclusionary rule: (1) courts should exclude unconstitutionally obtained evidence; (2) exclusion is proper judicial policy because courts should not be implicated in unconstitutional conduct; (3) exclusion is the only effective way for courts to provide a remedy when privacy rights of search victims are violated; and (4) courts should admit unconstitutionally obtained evidence. Two models of the role of courts are described, the fragmentary model and the unitary model. The fragmentary model treats trial court proceedings as constitutionally and morally separated from the actions of the executive in conducting a criminal prosecution. Under the unitary model, the judiciary is an integral part of the entire criminal prosecution process and thus shares constitutional and moral responsibility for government conduct. The author draws on the theory of separation of powers to argue that the unitary model correctly describes the role of courts in a limited constitutional government. 112 footnotes