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NCJRS Abstract

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NCJ Number: 90634 Find in a Library
Title: Legislating a Remedy for the Fourth Amendment
Journal: South Texas Law Journal  Volume:23  Issue:3  Dated:(1982)  Pages:584-631
Author(s): R R Rader
Date Published: 1982
Page Count: 48
Format: Article
Language: English
Country: United States of America
Annotation: The exclusionary rule is a rule of evidence rather than a mandate of the Constitution, and Congress may become increasingly likely to replace it with a more appropriate means of dealing with illegal searches and seizures.
Abstract: The express provisions of the Fourth Amendment give direct support for only a few conclusions about enforcement of its standards for searches and do not mandate the exclusionary rule. In addition, the historical context and origins of the amendment do not indicate an intention of an evidentiary suppression rule to protect against unreasonable searches. If Congress provided a superior alternative remedy, Supreme Court decisions indicate that this remedy would be able to replace or supplement the exclusionary rule. In fact, the Chief Justice overtly invited Congress to legislate an alternative remedy to the Fourth Amendment. As a result, six bills have been introduced in the Senate and six in the House of Representatives of the 97th Congress. The bills fall into three categories. Good faith bills permit the admission of evidence if the search or seizure occurred in good faith belief that it conformed to the Fourth Amendment. The substantiality test bills permit evidence unless the court finds an intentional or substantial violation of the Constitution. The third category of bills would eliminate the exclusionary rule and replace it with the common law rule that reliable and relevant evidence is admissible in court regardless of the means by which it was acquired. These bills are the most effective in eliminating all the costs of the exclusionary rule while also providing adequate safeguards that the fourth amendment will be scrupulously upheld. When the misconceptions surrounding the exclusionary rule are eliminated, Congress will reform or replace it. A total of 211 reference notes are provided.
Index Term(s): Exclusionary rule; Right of privacy
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