““Lost” CasesLost” Cases

The Effects of the The Effects of the Exclusionary Rule on Criminal Exclusionary Rule on Criminal Procedure and Recent Judicial Procedure and Recent Judicial

ResponsesResponses

Kayla Stachniak

L6172 04/02/07

Why are empirical studies important in Why are empirical studies important in the Exclusionary Rule context?the Exclusionary Rule context?

Supreme Court’s reliance on cost-benefit Supreme Court’s reliance on cost-benefit calculations in this areacalculations in this area

Empirical studies pre- and post-Empirical studies pre- and post-LeonLeon When the Court was considering whether a good When the Court was considering whether a good

faith exception to the exclusionary rule for faith exception to the exclusionary rule for physical evidence should be added and the effects physical evidence should be added and the effects of that exception after it was endorsed in of that exception after it was endorsed in LeonLeon

Empirical studies post-Empirical studies post-MirandaMiranda Due to Court’s language that the specific Due to Court’s language that the specific MirandaMiranda

rights are not a “constitutional straightjacket”rights are not a “constitutional straightjacket”

The Exclusionary RuleThe Exclusionary Rule

Exclusionary Rule for physical evidenceExclusionary Rule for physical evidence Designed to promote 4Designed to promote 4thth Amendment Amendment

prohibition against illegal searches and prohibition against illegal searches and seizuresseizures

Good faith exception so that evidence is not Good faith exception so that evidence is not necessarily excluded due to violationsnecessarily excluded due to violations

MirandaMiranda Rights Rights Designed to protect 5Designed to protect 5thth Amendment right Amendment right

against self-incriminationagainst self-incrimination If any of the four warnings aren’t given then If any of the four warnings aren’t given then

confessions can be excludedconfessions can be excluded

““Lost” CasesLost” Cases What is a “lost” case?What is a “lost” case?

Cases “lost” due to the exclusionary rule for Cases “lost” due to the exclusionary rule for physical evidence are often seen in terms of cases physical evidence are often seen in terms of cases prosecutors refuse to take due to illegal searches prosecutors refuse to take due to illegal searches or cases dismissed due to successful motions to or cases dismissed due to successful motions to suppresssuppress

Cases “lost” due to Miranda rights are typically Cases “lost” due to Miranda rights are typically looked at in terms of changes in confession rates looked at in terms of changes in confession rates (i.e. confessions that were never obtained because (i.e. confessions that were never obtained because of Miranda) and how this affects successful of Miranda) and how this affects successful prosecutionprosecution

Inherent difficulty in comparing empirical studies in Inherent difficulty in comparing empirical studies in this area as there is no agreed upon definition of this area as there is no agreed upon definition of what a “lost” case iswhat a “lost” case is

““Lost” Arrests due to Exclusionary Lost” Arrests due to Exclusionary Rule for 4Rule for 4thth Amendment Violations Amendment Violations

Davies’ critique of the NIJ studyDavies’ critique of the NIJ study NIJ cited in Justice White’s concurrence NIJ cited in Justice White’s concurrence

in in Illinois v. Gates (1983)Illinois v. Gates (1983) Davies noted in Davies noted in U.S. v. Leon (1984)U.S. v. Leon (1984)

Uchida and Bynum StudyUchida and Bynum Study Recent Judicial Response?Recent Judicial Response?

Hudson v. MichiganHudson v. Michigan (2006) (2006)

NIJ Study NIJ Study (1982)(1982)

MethodologyMethodology OBTS data of 86,033 felony cases declined by OBTS data of 86,033 felony cases declined by

California prosecutorsCalifornia prosecutors Prosecutor-reported reasons for declining to file criminal Prosecutor-reported reasons for declining to file criminal

charges after an arrestcharges after an arrest Drug arrest samples from two LA prosecutors’ Drug arrest samples from two LA prosecutors’

officesoffices 259 drug arrests; data specifically collected for study259 drug arrests; data specifically collected for study

Results and ConclusionsResults and Conclusions ““lost” arrests = 4.8% of felony arrests rejected for lost” arrests = 4.8% of felony arrests rejected for

prosecutionprosecution Greatest impact on drug cases: “lost” arrests = Greatest impact on drug cases: “lost” arrests =

30% of felony drug arrests rejected for prosecution30% of felony drug arrests rejected for prosecution Study relied on in Study relied on in Illinois v. GatesIllinois v. Gates

Davies’ Critique of the NIJ Davies’ Critique of the NIJ Study Study (1983)(1983)

Critique of the MethodologyCritique of the Methodology Two invalid statistical conclusions:Two invalid statistical conclusions:

RejectedRejected arrests arrests is not the proper baseline; is not the proper baseline; appropriate baseline is appropriate baseline is allall arrests arrests

Percent of felony drug arrests rejected is invalid Percent of felony drug arrests rejected is invalid because it is based on an atypical sample of less than because it is based on an atypical sample of less than 300 cases; should be based on statewide felony drug 300 cases; should be based on statewide felony drug arrest statisticsarrest statistics

Inappropriate samples, omission of readily Inappropriate samples, omission of readily available and pertinent data, slanted available and pertinent data, slanted interpretation of data evident in analytical interpretation of data evident in analytical choiceschoices

Davies’ Critique of the NIJ StudyDavies’ Critique of the NIJ Study

Results of Reanalyzing the DataResults of Reanalyzing the Data Arrests “lost” due to illegal searches = no more Arrests “lost” due to illegal searches = no more

than 0.8% of felony arrests in Californiathan 0.8% of felony arrests in California This estimate is probably still too high as it uses NIJ’s This estimate is probably still too high as it uses NIJ’s

problematic dataproblematic data Felony drug arrests “lost” = 2.4% using statewide dataFelony drug arrests “lost” = 2.4% using statewide data

ConclusionConclusion Nationwide comparison is importantNationwide comparison is important

Other studies report numbers between 0.5% - 0.8%Other studies report numbers between 0.5% - 0.8% Costs of exclusionary rule are marginal especially Costs of exclusionary rule are marginal especially

considering ambiguous nature of “lost” arrestsconsidering ambiguous nature of “lost” arrests Study noted in Study noted in Leon Leon footnote 6 but dismissed as footnote 6 but dismissed as

small percentages “mask a large absolute small percentages “mask a large absolute number”number”

Uchida and Bynum Study Uchida and Bynum Study (1991)(1991)

Methodology:Methodology: Data taken from 2115 warrant applications Data taken from 2115 warrant applications

during two 3 month periods in 7 during two 3 month periods in 7 anonymous jurisdictions around the countryanonymous jurisdictions around the country

In addition to looking at exclusion of In addition to looking at exclusion of evidence, looks at why the evidence was evidence, looks at why the evidence was excluded and the seriousness of the excluded and the seriousness of the offenseoffense

Two units of analysis: primary warrant and Two units of analysis: primary warrant and individual suspectindividual suspect

Uchida and Bynum StudyUchida and Bynum Study

Results Results ““Lost” Cases* = 1.4% of all defendantsLost” Cases* = 1.4% of all defendants

* court granted motion to suppress evidence and * court granted motion to suppress evidence and dismissed casedismissed case

Most serious offenders released were those Most serious offenders released were those charged with possession of cocainecharged with possession of cocaine

ConclusionsConclusions Cost of exclusionary rule is slight when police Cost of exclusionary rule is slight when police

obtain a search warrantobtain a search warrant Few criminals are freed and when they are Few criminals are freed and when they are

crimes are typically non-violentcrimes are typically non-violent

Critique of Uchida and Bynum?Critique of Uchida and Bynum? Only considers cases where warrants were Only considers cases where warrants were

issued and where charges were actually issued and where charges were actually filedfiled Does not give us any information about Does not give us any information about

instances where evidence was excluded instances where evidence was excluded because police failed to obtain a warrant at all because police failed to obtain a warrant at all or where prosecutors may have decided not to or where prosecutors may have decided not to file charges due to problematic warrantsfile charges due to problematic warrants

Only really gets at effect of good faith exception Only really gets at effect of good faith exception and even that not terribly welland even that not terribly well

Anonymous sitesAnonymous sites Weakens analysis as we can’t determine Weakens analysis as we can’t determine

possible confounding factors specific to the sitespossible confounding factors specific to the sites Are these cities representative of nation?Are these cities representative of nation?

Recent Judicial ResponseRecent Judicial Response

Hudson v. Michigan Hudson v. Michigan (2006)(2006) Holding: “Knock-and-announce” Holding: “Knock-and-announce”

violation does not require suppression of violation does not require suppression of evidence found in the subsequent evidence found in the subsequent searchsearch

Necessary but insufficient condition: Necessary but insufficient condition: Evidence would not have been obtained but-Evidence would not have been obtained but-for the illegal searchfor the illegal search

Cost-benefit calculationCost-benefit calculation

HudsonHudson’s Cost-Benefit Analysis’s Cost-Benefit Analysis ““Suppression of evidence, however, has always Suppression of evidence, however, has always

been our last resort, not our first impulse. been our last resort, not our first impulse. The The exclusionary rule generates "substantial exclusionary rule generates "substantial social costs," which sometimes include social costs," which sometimes include setting the guilty free and the dangerous at setting the guilty free and the dangerous at large.large. We have therefore been "cautio[us] against We have therefore been "cautio[us] against expanding" it, and "have repeatedly emphasized expanding" it, and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high law enforcement objectives presents a high obstacle for those urging [its] application.” We obstacle for those urging [its] application.” We have rejected "[i]ndiscriminate application" of the have rejected "[i]ndiscriminate application" of the rule, and have held it to be applicable only "where rule, and have held it to be applicable only "where its remedial objectives are thought most its remedial objectives are thought most efficaciously served," --that is, "where its efficaciously served," --that is, "where its deterrence benefits outweigh its 'substantial social deterrence benefits outweigh its 'substantial social costs.‘”costs.‘”

HudsonHudson’s Cost-Benefit Analysis’s Cost-Benefit Analysis Court doesn’t cite specific empirical evidence but Court doesn’t cite specific empirical evidence but

makes reference to assertions from the empirical makes reference to assertions from the empirical literature and cases where empirical evidence literature and cases where empirical evidence has been usedhas been used

Costs of excluding evidence would far outweigh Costs of excluding evidence would far outweigh the benefitsthe benefits Costs =Costs =

Flood of claims and resulting extensive litigationFlood of claims and resulting extensive litigation Violence against officers and destruction of evidence as Violence against officers and destruction of evidence as

police would be inclined to wait longer than necessarypolice would be inclined to wait longer than necessary Sometimes letting the guilty go freeSometimes letting the guilty go free

Benefits =Benefits = Deterrence benefits are not great as the incentive to Deterrence benefits are not great as the incentive to

violate “knock-and-announce” is so lowviolate “knock-and-announce” is so low Besides which, suppression of the evidence is not the only Besides which, suppression of the evidence is not the only

deterrent– civil suits are already a substantial deterrentdeterrent– civil suits are already a substantial deterrent

Cases “Lost” due to Miranda RightsCases “Lost” due to Miranda Rights

Cassell’s Study vs. Schulhofer’s Cassell’s Study vs. Schulhofer’s CritiqueCritique

Recent Judicial Response?Recent Judicial Response? Dickerson v. United StatesDickerson v. United States (200) (200)

Cassell Study Cassell Study (1996)(1996)

MethodologyMethodology Data from 12 jurisidiction-specifc “before and Data from 12 jurisidiction-specifc “before and

after” studies that purported to measure the after” studies that purported to measure the change in confession rate due to change in confession rate due to MirandaMiranda

Average drop = 16.1%Average drop = 16.1% Data from 13 studies to determine how often a Data from 13 studies to determine how often a

confession is necessary for successful confession is necessary for successful prosecution (subjective)prosecution (subjective)

Average estimate = 24%Average estimate = 24% Direct costs of Direct costs of MirandaMiranda = (change in = (change in

confession rate due to Miranda) X (cases in confession rate due to Miranda) X (cases in which confessions are necessary to convict)which confessions are necessary to convict)

Cassell StudyCassell Study

Results and ConclusionsResults and Conclusions Cases “lost” because of Miranda = Cases “lost” because of Miranda = 3.8%3.8% of all of all

criminal suspects questionedcriminal suspects questioned In real numbers, this is In real numbers, this is 28,00028,000 cases lost cases lost

against suspects for index violent crimes; against suspects for index violent crimes; 79,00079,000 cases lost for index property crimes; cases lost for index property crimes; and probably an additional 500,000 non-index and probably an additional 500,000 non-index cases lostcases lost

Better alternatives with less costs = Better alternatives with less costs = videotaping confessions with no questioning videotaping confessions with no questioning cut-off requirementcut-off requirement

Schulhofer’s Critique of Schulhofer’s Critique of the Cassell Study the Cassell Study (1996)(1996)

Critique of MethodologyCritique of Methodology Only looking at immediate post-Only looking at immediate post-MirandaMiranda world world

overstates costsoverstates costs Problem with time-series analyses in generalProblem with time-series analyses in general

Possible multiple causes = long-term trends, close-in-Possible multiple causes = long-term trends, close-in-time events, instabilitytime events, instability

Methodology problems in individual studies Methodology problems in individual studies relied uponrelied upon

Sampling, lack of equivalence for groups compared, Sampling, lack of equivalence for groups compared, lack of control for other causal variableslack of control for other causal variables

Failure to weight studies for national crime Failure to weight studies for national crime distributiondistribution

11 urban studies, 1 suburban study11 urban studies, 1 suburban study

Schulhofer’s CritiqueSchulhofer’s Critique

Result of Reanalyzing the DataResult of Reanalyzing the Data Making necessary adjustments results in Making necessary adjustments results in

only only 0.78%0.78%, not 3.8% , not 3.8% This figure probably still overstates the cost as This figure probably still overstates the cost as

it represents the necessity of a confession to it represents the necessity of a confession to convict at trial– plea bargains do not actually convict at trial– plea bargains do not actually represent “lost” casesrepresent “lost” cases

Fallacy of looking at adjusted attrition Fallacy of looking at adjusted attrition figurefigure

Cassell’s proposed alternatives are not Cassell’s proposed alternatives are not ConstitutionalConstitutional

Recent Judicial ResponseRecent Judicial Response

Dickerson v. United States Dickerson v. United States (2000)(2000) Holding: Congress does not have the Holding: Congress does not have the

authority to overrule authority to overrule MirandaMiranda It is a Constitutional decision, and the Court It is a Constitutional decision, and the Court

declines to overrule it at this pointdeclines to overrule it at this point Legislative alternative Legislative alternative §3501 is not equally §3501 is not equally

effective at protecting 5effective at protecting 5thth Amendment right Amendment right Cassell was invited to act as an amicus Cassell was invited to act as an amicus

curiae as neither side was willing to curiae as neither side was willing to argue the proposition that argue the proposition that §3501 was an §3501 was an appropriate alternative to appropriate alternative to MirandaMiranda

DickersonDickerson Cost-Benefit Analysis Cost-Benefit Analysis Court does not make explicit references to social Court does not make explicit references to social

science evidencescience evidence ““The disadvantage of the The disadvantage of the MirandaMiranda rule is that rule is that

statements which may be by no means statements which may be by no means involuntary, made by a defendant who is aware involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and of his ‘rights,’ may nonetheless be excluded and a guilty defendant go free as a result. But a guilty defendant go free as a result. But experience suggests that the totality-of-the-experience suggests that the totality-of-the-circumstances test which §3501 seeks to revive circumstances test which §3501 seeks to revive is more difficult than is more difficult than MirandaMiranda for law for law enforcement officers to conform to, and for enforcement officers to conform to, and for courts to apply in a consistent manner.”courts to apply in a consistent manner.”

Risks of totality-of-the-circumstances test are too great Risks of totality-of-the-circumstances test are too great and thus outweigh any costs of and thus outweigh any costs of MirandaMiranda

MirandaMiranda’s benefits in protecting Constitutional 5’s benefits in protecting Constitutional 5thth Amendment rights are very highAmendment rights are very high

ConclusionsConclusions Who is right?Who is right?

No one agrees on what would constitute an excessive costNo one agrees on what would constitute an excessive cost The statistics do have meaning, thoughThe statistics do have meaning, though

Unable to measure the benefitsUnable to measure the benefits Deterrence can’t really be quantifiedDeterrence can’t really be quantified How do we know the costs aren’t really evidence of the How do we know the costs aren’t really evidence of the

benefits? (for instance “lost” confessions might really benefits? (for instance “lost” confessions might really represent decline in egregiously coerced confessions)represent decline in egregiously coerced confessions)

Can we ever get at an answer empirically?Can we ever get at an answer empirically? So many confounding factors in “lost” arrest and “lost” So many confounding factors in “lost” arrest and “lost”

case determinationscase determinations How can we know the Exclusionary Rule is really the cause How can we know the Exclusionary Rule is really the cause

when charges aren’t filed after an illegal search or when a when charges aren’t filed after an illegal search or when a conviction isn’t obtained after an assertion of Miranda rights?conviction isn’t obtained after an assertion of Miranda rights?

The Court seems to choose which empirical evidence it The Court seems to choose which empirical evidence it will rely on based on the policy outcome it desireswill rely on based on the policy outcome it desires

Perhaps rightly as many if not most of the studies are Perhaps rightly as many if not most of the studies are methodologically flawed and highly partisanmethodologically flawed and highly partisan