Constitutional Exclusion : The Rules, Rights, and Remedies That Strike the Balance Between Freedom and Order

Supreme Court interpretations of the Bill of Rights have produced seven constitutional "exclusionary rules." These rules prevent prosecutors from introducing evidence of guilt in criminal trials, making it harder to convict offenders and enabling some criminals to avoid conviction and punishment. The importance of these evidentiary bars cannot be understated. They reflect inevitable tensions between liberty and security. Constitutional Exclusion, by James J. Tomkovicz contains in-depth analyses of each constitutional doctrine that dictates the suppression of evidence. The text begins with an extensive treatment of the Fourth Amendment exclusionary rule which bars evidence acquired by means of unreasonable searches or seizures. It then addresses three distinct doctrines that suppress confessions---the due process and privilege against compelled self-incrimination bar to coerced confessions, Miranda v. Arizona's Fifth Amendment prophylactic presumption that certain confessions are inadmissible, and the Massiah doctrine's Sixth Amendment right to counsel bar to incriminating admissions. Next, the book explains two prohibitions on eyewitness identification evidence, one rooted in the Sixth Amendment right to counsel and another grounded in the due process guarantee. Finally, the text explores the exclusion of hearsay commanded by the Sixth Amendment Confrontation Clause. Constitutional Exclusion analyzes the histories of, justifications for, and the legitimacy of these exclusion doctrines. By juxtaposing the rules and highlighting their distinctive characters, the book sheds new light on topics of vital importance to the administration of criminal justice. Cover 1 Contents 8 Preface 14 Introduction 16 CHAPTER 1: THE FOURTH AMENDMENT EXCLUSIONARY RULE 20 Introduction 20 A. The Basic Fourth Amendment Rule 20 B. The Origin and Development of the Fourth Amendment Exclusionary Rule: A Brief Historical Overview 23 C. The Legitimacy of and the Rationales for the Fourth Amendment Exclusionary Rule 37 D. The Reach of the Fourth Amendment Exclusionary Rule 47 1. Evidence Presumptively Subject to Suppression: The Fourth Amendment Exclusionary Rule Prohibition on Both Primary and Derivative Evidence 47 2. Proceedings in Which the Exclusionary Rule Operates 51 3. The “Standing” Doctrine: A Restriction of the Individuals Entitled to Evidentiary Suppression 54 4. A Possible “Culpability” Limitation on the Scope of the Exclusionary Rule 60 5. Exceptions to the Fourth Amendment Exclusionary Rule 61 E. Reflections on the Fourth Amendment Exclusionary Rule 77 CHAPTER 2: FIFTH AND FOURTEENTH AMENDMENT EXCLUSION OF CONFESSIONS 80 Introduction 80 A. The Basic Fifth Amendment Privilege and Due Process Clause Rules 80 B. A History of Fifth and Fourteenth Amendment Exclusion: The Origins and Evolution of the Dual Constitutional Bars to Coerced Confessions 82 1. Common Law Precursors: The “Nemo Tenetur” and “Voluntariness” Doctrines 82 2. The Origins and Development of the Dual Constitutional Bars to Involuntary Confessions 84 C. The Nature of and Rationales for the Due Process and Fifth Amendment Rules 100 D. The Reach of the Fourteenth and Fifth Amendment Rights to Exclusion 105 1. Evidence Subject to Suppression under the Due Process Clause and the Privilege against Compulsory Self-Incrimination 105 2. Proceedings in Which the Rights to Exclude Apply 110 3. Individuals Entitled to Exclude Coerced Confessions 113 4. Exceptions to the Exclusionary Commands of the Due Process Clause and Fifth Amendment Privilege 115 E. Reflections on the Fifth and Fourteenth Amendment Rights to Exclusion 123 CHAPTER 3: THE MIRANDA EXCLUSIONARY RULE 126 Introduction 126 A. The Basic Miranda Exclusionary Rule 126 B. The Origin and Transformations of the Miranda Exclusionary Rule: A Historical Account 129 C. The Rationales for and Legitimacy of the Miranda Exclusionary Rule 141 D. The Reach and Operation of the Miranda Exclusionary Rule 151 1. Evidence Subject to Exclusion: The Narrow Scope of Miranda’s Rule of Inadmissibility 151 2. Proceedings in Which the Miranda Rule Bars Statements 155 3. “Standing” to Suppress Statements Under Miranda 158 4. Exceptions to the Miranda Exclusionary Rule 158 E. Concluding Reflections upon the Miranda Exclusionary Rule 170 CHAPTER 4: THE MASSIAH DOCTRINE: SIXTH AMENDMENT EXCLUSION OF CONFESSIONS 174 Introduction 174 A. The Basic Massiah Suppression Doctrine 175 B. The Inception and Development of Massiah's Sixth Amendment Exclusion Doctrine: A Brief History 178 C. The Justifications for, Nature of, and Legitimacy of the Massiah Suppression Doctrine 192 D. The Scope and Operation of the Massiah Exclusionary Rule 201 1. Evidence Subject to Exclusion: The Presumptive Reach of Sixth Amendment Suppression 201 2. Proceedings in Which the Sixth Amendment Bars Evidence 207 3. “Standing” to Raise a Sixth Amendment Exclusion Claim: The Individuals Entitled to Massiah’s Suppression Remedy 213 4. Exceptions to the Massiah Exclusionary Rule 214 E. Concluding Reflections upon Massiah’s Sixth Amendment Exclusionary Rule 236 CHAPTER 5: SIXTH AMENDMENT EXCLUSION OF EYEWITNESS IDENTIFICATIONS 238 Introduction 238 A. The Basic Sixth Amendment Bar to Eyewitness Identification Evidence 239 B. The Origins and Development of Right to Counsel Suppression of Eyewitness Identifications 241 C. The Justifications for and Legitimacy of Sixth Amendment Exclusion of Eyewitness Identification Evidence 255 D. The Scope and Operation of the Wade-Gilbert Exclusion Doctrine 262 1. Suppressible Evidence: The Presumptive Scope of Right-to-Counsel Exclusion of Identification Evidence 263 2. Proceedings in Which the Wade-Gilbert Suppression Doctrine Operates 269 3. “Standing” to Seek the Exclusion of Eyewitness Identifications: The Persons Entitled to Bar Evidence 272 4. Exceptions to the Wade-Gilbert Suppression Doctrine 273 E. Conclusions about Sixth Amendment Exclusion of Eyewitness Identifications 289 CHAPTER 6: DUE PROCESS EXCLUSION OF EYEWITNESS IDENTIFICATIONS 292 Introduction 292 A. The Basic Due Process Clause Bar to Eyewitness Identification Evidence 294 B. The Birth and Development of the Due Process Bar to Eyewitness Identification Evidence 296 C. The Nature of and Rationales for the Due Process Bar to Eyewitness Identification Evidence 313 D. The Reach and Operation of Due Process Suppression of Eyewitness Identifications 321 1. Evidence Subject to Exclusion: The Presumptive Scope of the Fourteenth Amendment Bar 322 2. Proceedings in Which Due Process Excludes Evidence 326 3. “Standing” to Claim Due Process Exclusion: The Persons Entitled to Bar Eyewitness Identifications 329 4. Exceptions to Stovall’s Due Process Suppression Doctrine 331 E. Conclusions about the Due Process Bar to Eyewitness Identification Evidence 341 CHAPTER 7: CONFRONTATION CLAUSE EXCLUSION OF HEARSAY 344 Introduction 344 A. A Basic Sketch of the Confrontation Clause Bar to Hearsay 345 B. A History of the Confrontation Clause Barrier to Hearsay: The Birth and Development of Sixth Amendment Exclusion 347 1. From 1878–1980: The First Century of Confrontation Clause Exclusion 348 2. From 1980–2004: The Rise and Fall of the Roberts Framework 358 3. From 2004 Into the Future: The Crawford Revolution 373 C. The Nature of and Justifications for Confrontation Clause Exclusion of Hearsay 378 D. The Scope and Operation of the Sixth Amendment Right to Exclude Hearsay 385 1. The Evidence Subject to Suppression: Unconfrontable Testimonial Hearsay 386 2. Proceedings in Which the Confrontation Clause Bars Hearsay 399 3. “Standing” to Exclude Testimonial Hearsay 403 4. Exceptions to the Sixth Amendment Right to Exclusion 403 E. Reflections upon Confrontation Clause Exclusion of Hearsay 418 Conclusion: Reflections upon Constitutional Exclusion 420 Table of Cases 426 Index 440 A 440 B 440 C 440 D 441 E 442 F 442 G 444 H 444 I 444 J 445 K 445 M 445 N 446 O 446 P 446 R 447 S 447 T 449 V 449 W 449 contents Preface xiii Introduction xv chapter 1: the fourth amendment exclusionary rule 1 Introduction 1 A. The Basic Fourth Amendment Rule 1 B. The Origin and Development of the Fourth Amendment Exclusionary Rule: A Brief Historical Overview 4 C. The Legitimacy of and the Rationales for the Fourth Amendment Exclusionary Rule 18 D. The Reach of the Fourth Amendment Exclusionary Rule 28 1. Evidence Presumptively Subject to Suppression: The Fourth Amendment Exclusionary Rule Prohibition on Both Primary and Derivative Evidence 28 2. Proceedings in Which the Exclusionary Rule Operates 32 3. The “Standing” Doctrine: A Restriction of the Individuals Entitled to Evidentiary Suppression 35 4. A Possible “Culpability” Limitation on the Scope of the Exclusionary Rule 41 5. Exceptions to the Fourth Amendment Exclusionary Rule 42 E. Refl ections on the Fourth Amendment Exclusionary Rule 58 chapter 2: fifth and fourteenth amendment exclusion of confessions 61 Introduction 61 A. The Basic Fifth Amendment Privilege and Due Process Clause Rules 61 B. A History of Fifth and Fourteenth Amendment Exclusion: The Origins and Evolution of the Dual Constitutional Bars to Coerced Confessions 63 viii contents 1. Common Law Precursors: The “Nemo Tenetur” and “Voluntariness” Doctrines 63 2. The Origins and Development of the Dual Constitutional Bars to Involuntary Confessions 65 C. The Nature of and Rationales for the Due Process and Fifth Amendment Rules 81 D. The Reach of the Fourteenth and Fifth Amendment Rights to Exclusion 86 1. Evidence Subject to Suppression under the Due Process Clause and the Privilege against Compulsory Self-Incrimination 86 2. Proceedings in Which the Rights to Exclude Apply 91 3. Individuals Entitled to Exclude Coerced Confessions 94 4. Exceptions to the Exclusionary Commands of the Due Process Clause and Fifth Amendment Privilege 96 E. Refl ections on the Fifth and Fourteenth Amendment Rights to Exclusion 104 chapter 3: the miranda exclusionary rule 107 Introduction 107 A. The Basic Miranda Exclusionary Rule 107 B. The Origin and Transformations of the Miranda Exclusionary Rule: A Historical Account 110 C. The Rationales for and Legitimacy of the Miranda Exclusionary Rule 122 D. The Reach and Operation of the Miranda Exclusionary Rule 132 1. Evidence Subject to Exclusion: The Narrow Scope of Miranda’s Rule of Inadmissibility 132 2. Proceedings in Which the Miranda Rule Bars Statements 136 3. “Standing” to Suppress Statements Under Miranda 139 4. Exceptions to the Miranda Exclusionary Rule 139 E. Concluding Refl ections upon the Miranda Exclusionary Rule 151 contents ix chapter 4: the massiah doctrine: sixth amendment exclusion of confessions 155 Introduction 155 A. The Basic Massiah Suppression Doctrine 156 B. The Inception and Development of Massiah ’s Sixth Amendment Exclusion Doctrine: A Brief History 159 C. The Justifi cations for, Nature of, and Legitimacy of the Massiah Suppression Doctrine 173 D. The Scope and Operation of the Massiah Exclusionary Rule 182 1. Evidence Subject to Exclusion: The Presumptive Reach of Sixth Amendment Suppression 182 2. Proceedings in Which the Sixth Amendment Bars Evidence 188 3. “Standing” to Raise a Sixth Amendment Exclusion Claim: The Individuals Entitled to Massiah’s Suppression Remedy 194 4. Exceptions to the Massiah Exclusionary Rule 195 E. Concluding Refl ections upon Massiah ’s Sixth Amendment Exclusionary Rule 217 chapter 5: sixth amendment exclusion of eyewitness identifications 219 Introduction 219 A. The Basic Sixth Amendment Bar to Eyewitness Identifi cation Evidence 220 B. The Origins and Development of Right to Counsel Suppression of Eyewitness Identifi cations 222 C. The Justifi cations for and Legitimacy of Sixth Amendment Exclusion of Eyewitness Identifi cation Evidence 236 D. The Scope and Operation of the Wade-Gilbert Exclusion Doctrine 243 1. Suppressible Evidence: The Presumptive Scope of Right-to-Counsel Exclusion of Identifi cation Evidence 244 x contents 2. Proceedings in Which the Wade-Gilbert Suppression Doctrine Operates 250 3. “Standing” to Seek the Exclusion of Eyewitness Identifi cations: The Persons Entitled to Bar Evidence 253 4. Exceptions to the Wade-Gilbert Suppression Doctrine 254 E. Conclusions about Sixth Amendment Exclusion of Eyewitness Identifi cations 270 chapter 6: due process exclusion of eyewitness identifications 273 Introduction 273 A. The Basic Due Process Clause Bar to Eyewitness Identifi cation Evidence 275 B. The Birth and Development of the Due Process Bar to Eyewitness Identifi cation Evidence 277 C. The Nature of and Rationales for the Due Process Bar to Eyewitness Identifi cation Evidence 294 D. The Reach and Operation of Due Process Suppression of Eyewitness Identifi cations 302 1. Evidence Subject to Exclusion: The Presumptive Scope of the Fourteenth Amendment Bar 303 2. Proceedings in Which Due Process Excludes Evidence 307 3. “Standing” to Claim Due Process Exclusion: The Persons Entitled to Bar Eyewitness Identifi cations 310 4. Exceptions to Stovall’s Due Process Suppression Doctrine 312 E. Conclusions about the Due Process Bar to Eyewitness Identifi cation Evidence 322 chapter 7: confrontation clause exclusion of hearsay 325 Introduction 325 A. A Basic Sketch of the Confrontation Clause Bar to Hearsay 326 B. A History of the Confrontation Clause Barrier to Hearsay: The Birth and Development of Sixth Amendment Exclusion 328 contents xi 1. From 1878–1980: The First Century of Confrontation Clause Exclusion 329 2. From 1980–2004: The Rise and Fall of the Roberts Framework 339 3. From 2004 Into the Future: The Crawford Revolution 354 C. The Nature of and Justifi cations for Confrontation Clause Exclusion of Hearsay 359 D. The Scope and Operation of the Sixth Amendment Right to Exclude Hearsay 366 1. The Evidence Subject to Suppression: Unconfrontable Testimonial Hearsay 367 2. Proceedings in Which the Confrontation Clause Bars Hearsay 380 3. “Standing” to Exclude Testimonial Hearsay 384 4. Exceptions to the Sixth Amendment Right to Exclusion 384 E. Refl ections upon Confrontation Clause Exclusion of Hearsay 399 Conclusion: Refl ections upon Constitutional Exclusion 401 Table of Cases 407 Index 421 The Supreme Court's interpretations of constitutional guarantees have produced seven “exclusionary rules” which prevent prosecutors from introducing evidence of guilt in criminal trials. By requiring the suppression of probative evidence, these rules increase the difficulty of convicting offenders and can enable some criminals to avoid conviction and punishment. They are of enormous practical and theoretical importance and are graphic reflections of the unavoidable tensions between liberty and security. This book contains in-depth analyses of these exclusion doctrines. The text begins with an extensive treatment of the Fourth Amendment rule which bars evidence produced by unreasonable searches or seizures. It then addresses three distinct doctrines that exclude confessions—the due process and privilege against compelled self-incrimination bar to coerced confessions, Miranda 's presumption that certain confessions are inadmissible, and the Massiah doctrine's Sixth Amendment right to counsel bar to incriminating statements. The book next explains two prohibitions on eyewitness identification evidence—one rooted in the Sixth Amendment right to counsel and another grounded in the due process guarantee. Finally, it explores the exclusion of hearsay required by the Sixth Amendment Confrontation Clause. The book presents the histories of the exclusionary rules, analyzes their justifications and their legitimacy, and explains their doctrinal and operational nuances. By juxtaposing the rules and highlighting their distinctive characters and attributes, the text exposes the risks of treating all suppression doctrines as if they were identical. Moreover, it illuminates the costs and benefits of the protections afforded by the Bill of Rights and of the constraints it imposes upon American criminal justice systems "In Constitutional Exclusion, Professor James J. Tomkovicz discusses the exclusionary rules which prevent evidence of a criminal defendant's guilt from being introduced at trial. These rules incite strong, often hostile reactions from the public. This understandable antipathy toward evidentiary suppression is, to some extent, attributable to a misunderstanding of the reasons why our legal system suppresses probative evidence of guilt. In this book, Professor Tomkovicz describes and discusses the natures and the purposes of the seven different constitutional exclusion mandates. His in-depth examinations and analyses of exclusionary rule histories, foundations, objectives, and doctrines dispel some of the critical misconceptions and flawed assumptions that surround the rules and prevent appreciation of their significant roles in enforcing fundamental rights"--Provided by publisher In Constitutional Exclusion, James J. Tomkovicz discusses the "exclusionary rules" which prevent evidence of a criminal defendant's guilt from being introduced at trial, and which incite strong, often hostile reactions from the public.