Each section begins by recounting relevant doctrine from the United States and from three representative countries in Europe: England, France, and Germany. Finally, each section examines empirical research on the American system that provides further insight into this issue, and concludes by discussing the implications of that research for both the American and European approaches.
SEARCH AND SEIZURE
This conclusion suggests some possible hybrid approaches to police regulation that are presented in the final section of the article. If the rules of search and seizure are violated, the typical remedy in the United States is to exclude the evidence from the prosecution's case, with the result that the charge against the defendant must often be dismissed." Illegally seized evidence should not be excluded, however, if taken in good faith in reliance on a warrant, is used only to impeach a defendant who has taken the stand, or would have been discovered through legal means in any event.'2 Moreover, the defendant does not. has "standing" to exclude illegally seized evidence if the search did not violate his privacy but only interfered with that of a third party. authorization (although in some cases they must obtain an inspector's authorization supervisor), as long as the search is for evidence related to the criminal offense.5 Moreover, this warrantless search of the premises need not be done at the time of the arrest, but may be carried out some time later (perhaps up to a few hours later), and it can also happen when ar-.
French police investigating a "recent" major crime (a "flagrant" offense) are never required to obtain a warrant of the type contemplated by US law. German courts weigh the degree of intrusion and bad faith on the part of the police against the seriousness of the offense and the importance of the evidence. In a recent decision, the German Supreme Court interpreted "danger of delay" more restrictively, requiring 24-hour availability of judges, documentation of the reasons why the police or the prosecutor assumed there was a danger of delay, and judicial control of the investigation. decision.
See Volker F Krey, Characteristic Features of German Criminal Proceedings-An Alternative to the Criminal Procedure Law of the United States?, Address at Loyola University in Los Angeles (March 9, 1999), in 21 Loy. See Frase, supra note 18, that Most offenses give rise to disqualification only if they are deemed to have violated 'substantial' provisions of the Code or other laws relating to criminal procedure.").
An Empirical Analysis of the Differences
The NCSC study found that when the police requested a warrant, magistrates spent less than three minutes considering their application 65% of the time, spent more than five minutes on the application in just 11% of cases, and refused just 8. % of applications.4' A separate study found that judges are even less likely to reject law enforcement requests for warrants for electronic surveillance; of 20,107 applications filed for such orders at the federal level between 1968 and 1995, only 27 were denied, and none were denied between 1988 and 1995.' These findings suggest that judges routinely "rubbish" police applications and that neutral and independent adjudication of the kind praised by Judge Jackson rarely occurs. The NCSC study found that officers routinely ask their supervisors or the prosecutor to review their application before presenting it to a magistrate, that magistrates more than occasionally ask police to provide additional information before issuing a warrant, and that only 5% of the orders that are subsequently issued are declared invalid. The burdensome nature of the process can also encourage illegal searches if police try to evade them through questionable consent searches or staged arrests in areas where warrants are not required (eg, cars).
Several types of research address whether the exclusion of illegally obtained evidence deters police violations of the Fourth Amendment. Post-map changes in the number of search warrants issued, arrest and conviction rates, or the amount of stolen property and contraband seized—in theory possible indicators of the rule's effect—turned out to be influenced by a number of other variables as well. . For example, Professor Canon, although a proponent of the rule, felt compelled to conclude that his findings "do not come close to a claim that the rule works entirely or largely."55 Similarly, Dallin Oaks , a researcher who argued against retaining the exclusionary rule, admitted that his results are “clearly not of a sub-empirical nature.
Thomas Y Davies, Critique, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Canon, Testing the Effectiveness of Civil Liberties Policies at the State and Federal Levels: The Case of the Exclusionary Rule, at 5 of the morning. As Professor Davies concluded, "When all factors are considered, it is virtually unlikely that the Court will obtain any 'relevant statistics' objectively measuring the 'practical efficiency' of the exclusionary rule."57.
Interviews with police and other actors in the system also yielded ambiguous findings about the rule's impact. "questionable constitutionality" at least once a month, and 4% said they conducted searches that they knew were unconstitutional at least once a month, meaning that hundreds of constitutionally suspect searches take place every year in these two departments alone (of the more than 15,000 Even more disheartening for proponents of the rule are the results of a survey of several hundred police officers in California, which asked which Orfield, Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U.
One fairly robust finding from the before/after research and survey studies is that Mapp brought about at least a significant increase in such training programs, presumably because prosecutors and police departments, worried about losing cases, wanted their officers to follow the law on the fourth amendment must learn. .63 The last category of research, which examines the effectiveness of these programs, has also produced frustrating results. Legitimacy-compliance theory, developed by Tom Tyler,14 may provide another explanation for the relatively weak impact of the exclusionary rule. Because the rule "sanctions" the police by aiding a guilty individual, and because it "punishes" virtually all Fourth Amendment police violations, even those that are inadvertent, officers may not view the suppression of evidence as lawful, even if they support the values underlying the amendment.
Perhaps that is why it is also the most "expensive". Estimates of convictions lost due to the rule range from 0.6% to 7.1%, depending on the jurisdiction and the type of crime.79 Approximately 10,000 felons and 55,000 misdemeanors escape punishment each year as a result of successful Fourth Amendment rejection motions. ° Another, more subtle,. 34;costs" of the rule include exacerbating adversarial tensions between police, suspects, and attorneys because of the high stakes associated with illegal investigations,8' the disruptive effect of suppressed hearings on the quality of defense representation,2 and damage to courts and government generally from public outrage over.
Implications of the Research
IN TERROGATION
Until the mid-1960s, judicial regulation of the interrogation process in the United States focused exclusively on whether a suspect's statements were "involuntary" and therefore inadmissible. The following discussion will cover most of these differences, but will focus on the warning requirement, the use of deception and recording during interrogations, and the remedy for violation of the rules. In Germany, as in England, suspects must be informed of the right to remain silent and the subject of the investigation when they are the subject of an investigation.'36 The police must also inform suspects of their right to consult a lawyer prior to an investigation. . interrogation.'37 However, suspects have no right to counsel during interrogation, and the state does not have to give them the right to one if they are indigent.
In terms of sanctions, exclusion is mandated when the police fail to advise of the right to remain silent or to a lawyer, unless the person is shown to have already known of these rights.'42 In addition, German courts exclude confessions when the police use certain techniques. , such as hypnosis or illicit promises, regardless of whether the resulting confession is co-. Despite the many loopholes in the Miranda regime, it appears to control some aspects of the interrogation process better than English or German law, and clearly places more restrictions on police interrogation than French law. In France, questioning can continue after a request for counsel, again something that US law prohibits if the defendant does not resume, on the theory that invoking the right to counsel indicates that the defendant has decided he cannot face it alone with the police.5 In France and Germany, the police can stop the lawyer from questioning, again contrary to United States law.
Finally, what is the "cost" of the Miranda regime, primarily in terms of lost convictions. First, more suspects and more police know the right to remain silent and the right to counsel now than before Miranda. Hayman, Police Interrogations in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L .
Examples of trickery already mentioned include falsely stating that a co-defendant has confessed or that certain evidence was found at a crime scene, and continuing the interrogation after the suspect has demonstrated that he believes oral statements are inadmissible. In fact, 59.8% of departments surveyed said that recording increased the amount of incriminating information obtained from suspects. As noted above, in the United States, recording is discretionary in many departments that use it.
This summary of the research suggests that compared to a regimen where no warnings are given, such as existed in France before 2000, the Miranda regime alleviates the coercive aspects of the interrogation process. A comparison of the warning regime existing in the United States with the quasi-warning regime in England is more difficult to make because the latter approach at least values the suspect's right to silence and counsel, albeit in a way that significantly diminishes their value. Arizona?: On the History and the Future of the Rules for Police Interrogation, 37 AM.
Gordon Van Kessel, The Suspect as a Source of Testimonial Evidence: A Comparison of the English and American Approaches, 38 HASTINGS L.J. Accordingly, the impact of American regulation of police investigation is not terribly different from the impact of the less restrictive European regimes. .
