Report No. 94
7.19. Criticism in U.S.A. -
The exclusionary rule has continued to be controversial in U.S.A. The general public undoubtedly sees it as one of the "technicalities" of the law which handcuffs police and lets criminals go free. But scholars and judges also join in the criticism. In a major article, Dallin H. Oaks concluded that the rule did not deter police misconduct and that it had the negative effects of fostering false testimony by law enforcement officers, seriously delaying and overloading criminal proceedings and diverting attention from the search for truth on the guilt or innocence of the defendant. But, in spite of these weaknesses and disadvantages, Oaks would not abolish the rule "until there is something to take its place. It would be intolerable if the guarantee against unreasonable search and seizure could be violated without practical consequence."1
1. Dallin H. Oaks Studying the Exclusionary Rule in Search and Seizure, (1970) 37 University of Chicago Law Review 665; see Pritchett The American Constitution, (1977), p. 438.
7.20. Oaks would replace1 the exclusionary rule "by an effective tort remedy against the offending officer or his employer A tort remedy, could break free of the narrow compass of the exclusionary rule, and provide a viable remedy with direct deterrent effect upon the police whether the injured party was prosecuted or not."
1. Dallin H. Oaks Studying the Exclusionary Rule in Search and Seizure, (1970) 37 University of Chicago Law Review 665.
7.21. In Bivens v. Six Unknown Name Agents, (1971) 403 US 388, Burger, C.J. (dissenting) took the same position. Although he opposed the exclusionary rule, he likewise; agreed that it would not be abandoned until some meaningful alternative can be developed". He recommended that "Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated."