Yale Kamisar uses the term “heater cases” in his article In Defense of the Exclusionary Rule. Unfamiliar with the term, it was researched and determined to be a phrase used to refer to cases that are so controversial or unpopular that they are the subject of both media and public attention. (Bogira, 2005) Author Steve Bogira provides one example of a heater case. It is referred to as the Bridgeport case and involved the trial of three white men who had brutally beaten a 13-year old black male. It was alleged that the reason for the beating was to convey the message that the black boy would not be tolerated in the white neighbourhood. (Bogira, 2005)
Kamisar describes the heater case’s impact on the exclusionary rule. According to Kamisar, should a defendant escape conviction because the exclusionary rule prevents the admission of evidence crucial to a conviction. Such a scenario has the potential to inflame public passions with the result that the judge is under pressure to allow the evidence notwithstanding the illegal method employed to seize it and will “find a way” to admit it. (Kamisar, 2003, 119-140)
Kamisar does not refute each of Judge Calabresi’s arguments as to why the exclusionary rule should be abolished. He agrees in principle that many of the alternative remedies are ineffective, such as the remedies in criminal sanctions and civil complaints. (Kamisar, 2003, 119-140) Kamisar takes issue with Calabresi’s suggestions that the exclusionary rule could be effectively replaced by the introduction of a points system following conviction with a view to lightening the sentence imposed and the institution of some penalty with respect to the offending police officer. (Calabresi, 2003, 111-118)
Kamisar rejects these suggestions noting that with respect to the imposition of a points system which would effectively reduce the sentence would have no impact on police conduct. (Kamisar, 2003, 119-140) This is so because police care about convictions and the negative fallout should a suspect escape conviction. Therefore any alternative to the exclusionary rule that does not impact upon conviction will not act as an incentive for police to conduct orthodox investigations. (Kamisar, 2003, 119-140)
Moreover, Kamisar argues that Calabresi’s proposal for a sanctions hearing in respect of police officers who allegedly acting illegally in obtaining evidence is fraught by the same difficulties that impact upon civil or criminal remedies. (Kamisar, 2003, 119-140) The entire case will either stand or fall upon the credibility of the accused person, which as Kamisar argues is tenuous at best particularly following a conviction. (Kamisar, 2003, 119-140)
Yale Kamisar primarily relies on balancing two conflicting policy issues in his article “In Defense of the Exclusionary Rule.” The first policy consideration is the need to allay the general public’s fear of crime and the second policy consideration is the need to protect suspects from police abuse of constitutionally protected rights, particularly the fourth amendment right to privacy and due process as contained in the fourteenth amendment. (Kamisar, 2003, 119-140)
In determining the value of the exclusionary rule Kamisar considers the impact of its abrogation on both policies. He submits that its abolition would result in defeating constitutional rights since alternatives to the exclusionary rules are ineffective. He goes on to argue that although the exclusionary rule does not entirely protect constitutional rights against police misconduct, it is the only feasible remedy available since police do care about convictions.
The likelihood of the exclusionary rule setting a suspect free is more likely to deter police misconduct than not. Since judges are always mindful of the consequences of allowing a serious criminal to escape conviction, the exclusionary rule will not undermine public policies with respect to getting tough on crime. In other words, the exclusionary rule is the best method for balancing policies against criminal conduct and safeguarding the constitutional rights of an accused person.
Yale Kamisar’s arguments for the retention of the exclusionary rule has substantial merit. If police conduct hinges entirely on the desire to obtain convictions and drives the police officer to offend constitutional rights, it logically follows that if evidence obtained in that manner is excluded police would be less likely to infringe upon constitutional rights. Kasimar readily admits that the exclusionary rule is not perfect, but it is the best police regulatory method available.(Kamisar, 2003, 119-140)
Arguments that serious criminals escape conviction as a result of the exclusionary rule are not supported by empirical research studies. (Kamisar, 2003, 119-140) More importantly, judges can be trusted to exercise their discretion properly and fairly with respect to the exclusionary rule. Those who argue against the effectiveness of the exclusionary rule fail to take account of the experience and intelligence that judges manifest in criminal trials. It is highly unlikely that a judge will permit either a police officer or a criminal to manipulate his discretion. He is more likely than not err on the side of caution.
Bogira, Steve. (2005) Courtroom 302. New York, Alfred A. Knopf.
Calabresi, Guido. (2003) “The Exclusionary Rule.” Harvard Law Journal and Public Policy. Vol. 26, 111-118
Kamisar, Yale. (2003) “In Defense of the Exclusionary Rule.” Harvard Law Journal and Public Policy. Vol. 26, 119-140