Good evening, ladies and gentlemen, and welcome to The Advocates, the PBS
Fight of the Week. This program is made possible by grants from The Arthur
Vining Davis Foundations, Lilly Endowment, Inc., and WTTW Public Television
Ladies and gentlemen, may I have your attention, please.
Moderator Evan Semerjian has just called tonight's meeting to
Good evening. Tonight we look at an issue of vital concern in the area of
law enforcement and criminal court procedure, and specifically the question
is this: Should courts admit evidence that police have seized illegally?
Advocate James Hill says, "Yes."
Mysteriously, we proceed on the Alice in Wonderland theory that when the
Court confronts a guilty criminal and a guilty policeman, it should release
both and punish neither. A rule so contrary to common sense ought to be
abolished. My witnesses tonight are Donald Santarelli of the Justice
Department and James Zagel, Head of the Criminal Justice Division of the
Illinois Attorney General's Office. Thank you,
Advocate Lloyd Weinreb says, "No."
When the police, or any official of the government, violates our
constitutional rights, the government must not profit from its own illegal
conduct by using that evidence in court against the same person whose rights
were violated. Here with me tonight are Chief Joseph McNamara, Chief of
Police of Kansas City, Missouri. My second witness is the Honorable George
Crockett, Presiding Judge of the Recorder's Court in Detroit.
Thank you, gentlemen. Our program is originating tonight from the studios of
WTTW in Chicago, Illinois. By way of introduction, let me say that Mr.
Weinreb, who appears tonight for the first time as an advocate, is a
Professor of Criminal Law and Criminal Process at Harvard Law School and a
former prosecutor in the District of Columbia. Mr. Hill may be familiar to
many of you as an attorney from Atlanta who has made several appearances on
The Advocates. Before we hear the cases, let me take just a moment to tell
you that The Advocates' appeal for funds has been partially heard. We've
acquired enough money to permit us to extend our broadcast season to early
April. Although we don't yet have all the funds needed for a full season of
broadcast, we're hopeful that money soon will be found to carry our programs
to late May or early June. So with that good news let's get on with
tonight's debate and a word of background on tonight's question.
Bill of Rights of the Constitution, people are given protection against
government searches. Any search of a person or his property must be
reasonable, or it's illegal. If a search warrant is required, it must be
made out according to specific requirements. If these standards are not met,
the search is illegal. If an illegal search turns up evidence of crime, the
rule today is that this evidence cannot be used at a criminal trial of the
person whose rights were violated. This means that if the police search your
home unlawfully, they cannot use any evidence of crime that they may find
against you at a trial. This rule, called the Exclusionary Rule, has been in
effect in the federal courts for sixty years and in state courts since 1961.
The rule was intended to guarantee people their constitutional rights as
well as to discourage police from exceeding their lawful authority. But one
consequence of the rule is that some people who may be guilty of crimes
cannot be convicted because reliable evidence cannot be introduced at their
trials. Chief Justice Warren Burger has called the rule an unworkable and
irrational concept of law and attention has been drawn to the issue by a
recent Supreme Court decision. The United States v. Calandra. In that case
the Supreme Court allowed evidence that police had seized illegally to be
used in grand jury proceedings where the rules of evidence are less strict
than in criminal trials. Tonight we examine a proposal to allow evidence
obtained illegally to be admitted in criminal trials. And now to the cases.
Mr. Hill, the floor is yours.
Thank you, sir. First, let's understand this Exclusionary Rule. Your child
is hopelessly hooked by a heroin pusher. An officer locates the physical
evidence proving his guilt, but his search warrant had a flaw. The evidence
is in court, but the Court must pretend the evidence does not exist and send
the pusher back to his trade, and this nonsense is said to uphold our
Constitution. The overriding purpose of trial is to ascertain the truth.
This rule admittedly requires the Court to shut its eyes to the truth. Why?
Because someone thought that the way to deter unlawful searches was to set
criminals free by excluding critical evidence, Mystically, releasing the
dangerous criminals will cause the officer to mend his ways. Well, it
hasn't. Why should the accused and the law enforcement officer both go
unpunished? Common sense says punish them both if they have broken our law.
The present system punishes neither. It deters no unlawful searches. It is a
tragic price to pay for no perceivable results. To demonstrate this, I call
Mr. Santarelli, welcome to The Advocates.
During the four years when he was an Associate Deputy Attorney General, Mr.
Santarelli was a critic of the Exclusionary Rule. Mr. Santarelli, should
material evidence, even though improperly obtained, in your opinion be
admitted in a court trial?
Yes, I believe that the rule of law should be that evidence that has some
value that the Court, in its search for the truth, should be available to
the trier of fact.
If it is improperly obtained under the present circumstances, may it be
accepted in trial?
The present rule of law, as I understand it, is that if it is unlawfully
seized, the Court must exclude it. My objection to the rule is the
inflexibility of it, that in every case where the violation is small,
inadvertent, non-egregious, the evidence must be excluded. It's interesting
that ours is the only country following the American, or the Anglo-Saxon,
law that requires such a result. The English and the Canadians have the same
rule of law that we have, namely protection against unreasonable searches
and seizures, but they do not require the exclusion of evidence.
Well, what is wrong with an exclusionary rule? Doesn't it deter improper
No, because it doesn't reach the unlawful conduct directly. It does not
reach the police officer. It merely excludes the evidence against the
defendant, often palpably guilty. It doesn't sting the wrongdoer. The police
are not concerned with the obtaining of the conviction as much as they are
with the making of the arrest, of the solving of the crime. Their concern is
for making the case, but they feel no sting as a result of the exclusion of
Well, if it doesn't deter or punish the policeman, who does it punish, if
anyone, and who does it help?
It seems to punish innocent society. In the case where the defendant who is
palpably guilty because of the overwhelming evidence against him that is
suppressed. And on the other hand, it offends and punishes the judicial
process, which is made to be ludicrous and unbelievable because it is doing
exactly the opposite of what is expected of it, not finding the truth and in
fact suppressing actual facts in plain view.
Do you know of any study that indicates, now that we live under this rule,
whether or not the people's confidence in the courts has been
Just in this past month the Department of Justice through the Census Bureau
has released the most monumental study ever conducted of the victimization
of individuals of crime in America. 150,000 people were interviewed in eight
major cities, two and a half hours each, by a Census Bureau employee, and
the facts were overwhelming. There is at least another time as much crime in
the United States that is not reported to the police, but what is important
in that study is the victims told the Census Bureau investigator in that two
and a half hour interview that the reason was they had no confidence in the
criminal justice system, they didn't believe that the courts
Well now, if this rule doesn't safeguard us, are you in favor of absolutely
unrestricted police search and seizure?
Well, how would you protect us against unreasonable police
Make this a brief answer.
Very simply. There is proposed, and I advocate, a method that would punish
the individual police officer by making him liable, both in damages to the
individual and punitively liable for any amount of harm that he causes to
the individual, obviously limited in dollars to the police officer because
he couldn't afford to pay it.
And against the executive.
Thank you, Mr. Hill. Let's go to Mr. Weinreb for some questions.
Mr. Santarelli, let me understand your objection to the Exclusionary Rule.
If I heard you, you said that your objection was to the inflexibility of the
rule, so let me ask you if you're in favor of the total abolition of the
rule. Would you admit any evidence as long as it was reliable, however it
had been obtained?
I believe there is a better answer to the question of how to deter unlawful
police conduct and how to assure the sanctity of the courts than to suppress
evidence. Yes, I do favor the abolition of the rule with the understanding
that an alternate system, an effective alternate system of punishments to
the wrongdoer, replaces it.
But I take it you are proposing for us this evening that however the police
obtain their evidence, if they obtain it by abusing a man, by beating him,
by ransacking his house, whatever they do, if they produce evidence that's
reliable, the courts should use it against that man.
I am advocating the position that evidence that is seized that has probative
value, that is useful value in the courtroom, shall be admissible because
there's another system to punish egregious and offensive police conduct that
you mentioned, punishment.
Without regard to the fact that it was obtained by such egregious violations
of our rights. Let me ask you then, Mr. Santarelli, how do we educate our
police? How do we train them to uphold our constitutional rights, if we tell
them that it doesn't really matter if the rights are violated? Aren't you
saying to them since, sure, the Constitution is important, but it's not all
that important; go get that evidence. Isn't that what you've been telling us
Absolutely not. I am telling you that any policeman in his right mind is not
going to go and seize evidence where he thinks he's even likely to be liable
to serious penalties of money damages or other sanctions against him. I'm
proposing an alternative system of sanctions, a point you seem to miss in
your question to me, alternative sanctions against the policeman, not
Well, let's turn to those alternatives for a moment, Mr. Santarelli. I take
it that if someone believes that he has been injured in his constitutional
rights, he would have to come into some tribunal, bring his witnesses in,
come in himself and testify, file a complaint and so forth, and ask for some
civil remedy. Is that your proposal?
That is one solution to the problem.
Well, let's deal with that particular solution to it for a moment. What
about a man or a woman whose house is burgled? The police go in, if you
like, committing what is, in effect, burglary, come out with some valid
evidence. The man is prosecuted, as you tell us, and he's sent off to
prison. How is that man going to get a remedy for that violation of his
I'm proposing that the violation be dealt with on two levels: one, if in
fact a criminal prosecution is brought against him, he has the right to
raise the objection and the damage question right in the prosecution, and
the judge will dispose of that at the same time the case goes
So there will be . . .
In a case where there is no prosecution, he comes into court on his
If I understand you, then, the man will be prosecuted, he will raise the
question of the violation of his rights, he will be told yes, your rights
have been violated, perhaps outrageously, you go to prison with what—$50
damages, $100 damages.
If the man is in fact guilty, he should be found so. Are you advocating that
the truth be suppressed?
Certainly not. I'm advocating that we obtain valid evidence within the
constitutional bounds that are prescribed for us.
Let me turn to the other half of your remedy, Mr. Santarelli, the remedy of
sanctions against the police. Who will impose those sanctions?
Either the Court itself in the hearing where the police or prosecutor in the
name of the people bring a case against the defendant, or the judge if the
individual is not prosecuted—and there are many cases where evidence is
seized and the police choose not to prosecute so that they don't raise the
risk to themselves under the present system of being punished for their
unlawful conduct—or an alternative system of a commissioner, a civil
commissioner, much in the same manner as the Department of Motor Vehicles
has a Commissioner that renders judgment against individuals for the loss of
their license. This civil commissioner, civil judge, can make an
adjudication and award damages where there is no criminal case.
Let me ask you, Mr. Santarelli, what message we communicate to the police
when we say to them, "If you violate the constitutional rights of a citizen,
we'll bust you...”
You will be punished.
"You will be punished, but we will profit by what you’ve done."
People do not profit . . . The people do profit by the introduction of the
truth in criminal trials. They do not profit when we suppress the truth and
make no other motion to penalize police.
No other motion.
Excuse me, Mr. Santarelli. Isn't the real result going to be that the
evidence comes in, the man is convicted, and that's the end of it? Haven’t
we had these remedies all along? In fact, couldn't we have them now if the
state so chose? And isn't it a fact that the tort remedy you're proposing
has been utterly ineffective? Isn't it a fact that the police don't sanction
the police because you don't set the fox to watch the chicken
Make this very brief.
Particularly if the farmer's taking the chickens away himself.
Make this very brief, Mr. Santarelli.
The truth of that is that we have an Exclusionary Rule which gives the
police and the Court an out. I'm proposing to do away with that rule and
replace it with a more effective method of sanction.
All right, let's go back to Mr. Hill for a question.
Mr. Santarelli, do you want to abolish our guarantees against search and
seizure under the fourth amendment to the Constitution, or do you want to
strengthen them by direct action against the offender?
That's the essence of my argument. The action must be to punish the
wrongdoer and not to miss the point and punish society.
All right, back to you, Mr. Weinreb.
Mr. Santarelli, as Head of LEAA, you are now making big grants of federal
money to local law enforcement agencies in the billions of dollars, as I
understand it. Isn't that right?
I'm disappointed that you ask that question because it suggests something.
It suggests that I'm here as an advocate on behalf of my agency.
No, my question . . .
No, my question, in fact, was different. How will the police react, local
police, to a proposal that will punish the police, most likely rendering the
municipality liable from the police budget in order to pay off people who
come in and claim that although they've been convicted of a crime, they
ought to receive some damages from the police department?
I would believe that policemen are good citizens along with the rest of us,
and who would respond affirmatively to the notion that we will really put
teeth for the first time in history in what we mean when we say, "You are
guaranteed against unreasonable searches and seizure."
By putting teeth . . .
Okay, Mr. Santarelli, I want to thank you very much for being with us here
We have seen that this rule does not prevent unlawful searches and seizures.
To further our case I now call James Zagel.
Mr. Zagel, welcome to The Advocates.
Mr. Zagel brings us personal experience as the Head of the Criminal Justice
Division of the State of Illinois Office of the Attorney General. Mr. Zagel,
does the administration of the Exclusionary Rule entail any cost upon the
people living in our society?
Well, it entails a very substantial cost. There are literally hundreds of
persons guilty of narcotics and gun offenses who walk the streets despite
their obvious guilt because the evidence essential to their conviction has
been suppressed, and it's not limited to narcotics and gun cases. In one
recent instance in my experience a person murdered a young teenage girl, hid
her body in a rural farm area. The police got a warrant signed by a judge
which gave them the right to search, but there was a technical deficiency in
the warrant, and the Court held that the very body itself, the nature of the
crime itself, had to be suppressed, it was a magical disappearing act. It
was as if this young girl had never walked the earth.
Well, some have said that police anyhow always have the opportunity to
secure evidence without transgressing any of the intricate rules governing
search and seizure. In your experience is that statement true?
No, that's not true at all. There's a large class of criminals who are able
to elude the efforts of even the most diligent police officers. In one case
in which I acted, I could not, accompanied by some six or seven attorneys
for the people, figure out a way to secure evidence relevant to a
particularly brutal kidnap murder, and we were talking about attorneys. What
happens most of the time is that a police officer, acting not out of malice,
intending to do the right thing, simply blunders because the law governing
search and seizure is not very clear. It's not clear to attorneys, and it's
going to be particularly unclear to police officers.
What of the claim that you hear sometimes that if the courts admit evidence
illegally obtained, the Court implicates itself in the illegal conduct of
Well, I think that's nonsense. It makes just as much sense to say that a
court, by saying to a murderer or an armed robber, "The evidence against you
is suppressed. You may go free and walk the streets," that the Court by
doing that act implicates itself in armed robbery or murder. In point of
fact, the way the Exclusionary Rule operates, the Court does implicate
itself when it applies the Exclusionary Rule. A police officer will tend to
tailor his testimony because he does not respect the Exclusionary Rule.
He'll tailor his testimony to get the evidence before the Court, and the
Court participates in that, and the same kind of pressure that operates on a
police officer, the pressure of a terrible crime and the possibility that
its perpetrator may go unpunished, it affects courts just as well, and the
Court may nod at police perjury and allow the evidence to go in, and in that
sense, in a very real sense, the Court implicates itself in improper
Make this a brief question and answer, Mr. Hill.
All right, sir. Suppose tomorrow the Supreme Court abolished the
Exclusionary Rule, in your opinion would the police take unreasonable
Well, appellate court opinions issued in Washington don't cause crime or
police wrongdoing. Police respond to the public pressure to solve crimes, to
the pressure of their peers and superiors to make arrests, and if the Court
throws out the case, it's the Court's fault and the Court's responsibility,
and they feel that they have no responsibility for it. And I might add that
police officers, like almost everybody else in the society, are by and large
law-abiding citizens, and if you tell them not to do something, they won't
All right, thank you, Mr. Hill. Mr. Weinreb is eager to ask you some
questions, Mr. Zagel. Let's hear what they are.
Mr. Zagel, if a police officer, walking his beat, comes across someone
committing a crime, comes across someone whom he has reasonable grounds to
believe is committing a crime, such as the offenses you mentioned—possession
of narcotics, possession of a gun— he has authority then and there to make
an arrest and to search, doesn't he?
He may. He may be restricted by certain technical rules which require a
warrant even though he has reasonable cause, and it may not be possible for
him to get a warrant.
In most situations, Mr. Zagel, isn't it a fact that he needs no warrant if
he finds someone with— if he has reasonable grounds to believe that the
person is then committing a crime? Isn't that the law?
He needs no probable cause to arrest. He does need...
Having made the arrest, does he not have authority to make a
He has an authority only to search the person.
That's correct, on whose person he would find the narcotics perhaps, or the
guns that you were speaking of.
He might, but then again, he might find the evidence in the person's house,
or in the person's automobile, which he cannot search.
If he arrests him on the street and he has probable cause to believe that
evidence is there, he can obtain a warrant and go search the house or the
car, can he not?
Frequently he cannot.
Because he lacks the constitutionally required minimum of probable cause, is
Are you really saying to us, Mr. Zagel, that the problem is not that the
police abuse their power, but that we should give them more power? Are you
saying to us that the police should have more power now than they
No, I am simply saying that when a police officer does violate somebody's
constitutional rights, when
he does search without the probable cause, then
person who ought to pay the penalty is the police officer and not the
If, Mr. Zagel, you're telling us that when a police officer lacks the
authority to make the search, which you believe we should have in order to
get this evidence so that we can prosecute, why shouldn't we do that
directly, rather than make, if you like, an end run around the fourth
Amendment, accept the evidence, and in some future time, if you like,
penalize the policeman if we can?
I submit that your route is the indirect one. You are saying let's stop this
by suppressing the evidence which essentially affects no one but the people
or perhaps the prosecutor who doesn't like to have the evidence suppressed
and has no effect on the police officer at all. The people who are punished
are the people who live in the society as a whole when the criminal goes
free, but they haven't committed the wrong. The wrong was committed by the
You referred, I think, Mr. Zagel, to serious crimes. One of them that you
mentioned was kidnapping. The FBI, which has jurisdiction over most
kidnapping in this country, has worked with the Exclusionary Rule for sixty
years, isn't that right?
Has the FBI suffered from using the Exclusionary Rule?
I think in some very significant circumstances they have.
It is a fact, however, isn't it, that the FBI is the most respected law
enforcement agency in this country?
I'd like to decline to answer that, Mr. Weinreb.
Mr. Zagel, you did tell us, I think, that most police want to work honestly
within the law, they want to uphold the Constitution and so forth in
general. How can we expect the police to do that if we say to them, as I
think you're telling us tonight; "Law enforcement is so important that even
if you violate the Constitution, the society will take advantage of that
violation and again, perhaps sometime later on, most likely not, we may
Well, I would disagree with the statement, "most likely not." I think a
fairly consistent and regular remedy against the police officer can be
devised, but the fact of the matter is there's a basic assumption— it's an
assumption which underlies the Exclusionary Rule—that by having the
Exclusionary Rule you are telling the police officer something. I don't
think you're telling the police officer anything; he cares about the arrest.
Your conviction doesn't matter to him, and I might add, as I stated in my
direct testimony, it's very difficult to talk about telling a police officer
to do something when you're talking about a rule that is monumentally
unclear, because the rules of search and seizure are not clear.
Excuse me. You did tell us, I think, that a police officer will tailor—I
think is your word—his testimony to satisfy the requirements of the Fourth
Amendment, which by that time, I take it, he does know sufficiently to
tailor his testimony, and similarly. . ,
He will only know it as to the particular case.
Similarly, you've told us, I think, that the judge will accept that
testimony often to allow the evidence in. Isn't it very, very likely, Mr.
Zagel, that when we get around to penalizing the police officer, he will
also, if need be, tailor his testimony, and that the judge will also, seeing
the problem of assessing a fine against a police officer, accept that
testimony? Isn't it a fact that the remedy that you propose is really no
remedy at all?
Make this very brief.
I would accept your first premise with respect to the police officer. I
would not accept your premise with respect to the Court.
All right, let's go back to Mr. Hill.
But if there is a police officer who would like to act illegally, as there
may be, in your opinion does the present rule deter him, or would the
alternative suggested by Mr. Santarelli be a more direct and effective
The present rule doesn't deter him at all. It has no sanction against him
personally; it has no sanction against him in terms of his standing within
the police department, and a remedy that assessed so small as a $200 fine
that he had to pay out of his own pocket would, I tend to think, deter
Mr. Weinreb, back to you.
Mr. Zagel, the remedy which you are proposing to us now as new remedies have
in fact been available all along, haven't they?
No, they have not.
Up until 1961 isn't it a fact that the states were free to adopt those
remedies and that their failure was one of the primary reasons why the
Supreme Court imposed the Exclusionary Rule in 1961?
No, it was my understanding that prior to 1961 the only thought was given to
the conventional civil prosecution, a civil suit for damages, and that the
relatively new model of a civil commissioner to award damages on a fixed
scale was not a matter for consideration by the states in 1961.
But isn't it the case that the only change you've proposed is that we
substitute a commissioner, whoever that may be, for the judge who had
authority to weigh these civil cases all along?
That would be, of course, a very substantial change. The argument that was
made that said that the civil remedy was ineffective was that when you went
before a jury, a jury would sympathize with the police officer, would
believe that the defendant had committed a terrible crime and ought not to
collect damages. By having a professional adjudicator we hope to avoid
Okay, Mr. Zagel, I want to thank you very much for being with us
Yes, sir. Do you know what I believe worries all of us, you and me, more
than anything these days, except possibly gas shortage? It's crime in our
streets, the kidnappings, heroin pushing, burglaries and hijackings, and
it's no wonder. We have prostituted our courts, forcing them to suppress the
truth, rather than ascertain the truth and for no useful purpose. As Justice
Cordozo said of this rule to exclude evidence, "The criminal is to go free
because the constable has blundered." It's time we abolished this parody of
justice. Thank you.
Thank you. For those of you in our audience who may have joined us late, Mr.
Hill and his witnesses have just presented their case in favor of courts
admitting evidence that police have seized illegally. And now for the case
against. Mr. Weinreb, the floor is yours.
Thank you. The Constitution has been the source of our liberties now for
almost two hundred years. It gives us a workable balance between the need to
preserve law and preserve security and order and the need to encourage
individual freedom, protect our liberties on the other hand. The question
before us tonight is not whether the police or the FBI or the government
generally should have enough authority to investigate and prosecute crime.
Of course they should. The question rather is what happens if the police go
beyond their lawful powers, if they violate our basic constitutional right
to be let alone, not to have to fear a sudden knock on the door at night,
not to have to wonder if our private papers really are private, not to have
to wonder when we walk down the street whether we won't be thrown across the
hood of a car and searched. The question is whether we should acquiesce in
such violations, accept them, and allow evidence that is turned up in that
way, by an unlawful search, to be used in court against the very man whose
rights were violated. The question is whether we should tell the police
whose duty it is to preserve law and order that it doesn't really matter if
they violate the Constitution, or if, rather, we should tell them that the
society fares better if the protectors of the law are themselves bound by
the law. My first witness tonight is Joseph McNamara.
Chief, welcome to The Advocates.
Mr. McNamara, Chief McNamara, I should say, was for seventeen years a member
of the New York Police Department. In that department he worked his way up
from a patrolman, in which capacity he worked the beats in the city that had
the highest crime rate to Inspector. Last year he became Chief of Police of
Kansas City. Chief McNamara, in your opinion do the police have enough
authority, power to arrest and search?
Yes, we do. I think it has been misstated here that the police are groping
for the power to make an arrest. We have the power to arrest upon probable
cause, reasonable grounds to believe a person has committed a crime. We have
the power to arrest people who the officer reasonably suspects of committing
a crime. We have the power to frisk people whom the officer reasonably
suspects may be in possession of a weapon dangerous to the officer's life.
In certain cases we have the authority to search automobiles and in all of
those cases the evidence which is seized by the police is admissible in
And in addition, of course, if those opportunities to search without a
warrant aren't available, the police can obtain a warrant on probable cause
and make a search.
In your experience as a police officer, does the Exclusionary Rule affect
the conduct of the police?
It certainly does. I began in police work in 1956, and I can remember the
first step that every officer takes is swearing an oath to uphold the
Constitution. Not too long thereafter in the Police Academy training
process, an instructor told the officers that it was permissible to conduct
an unlawful search; in fact, it was what a good cop did. One officer raised
his hand and asked a question and said, "Well, I thought this search was
unconstitutional. How can it be permissible?" The instructor replied, "There
can't be very much wrong with it because the courts admit the material which
you seize into evidence." Now, that changed in 1961 when the courts refused
to admit illegally seized evidence into court trials.
As Chief of Police of a large urban police force now, how does the
Exclusionary Rule affect what you've tried to instill in your men?
The Exclusionary Rule makes a moral statement of what is right. Quite
simply, I think the enormous problem that all law enforcement has in this
country is credibility, and if those who are sworn to uphold the law violate
it themselves, we'll lose the vital support which we need and therefore that
... I think that Exclusionary Rule gives us a moral mandate with which to
withstand any public pressure which may come about because of a notorious
crime, makes it quite clear that it is not some rule which the Chief is
arbitrarily imposing upon his men. It is a law of the United
We've been told a good deal this evening about convictions that are lost
through application of the Exclusionary Rule. Would you comment about that,
Well, in all of my years of experience, I can't remember one serious case
that was lost because of the Exclusionary Rule. The police have improved
tremendously. I object very strongly to the implications here today that
there's wholesale illegal police conduct. I think we've improved because the
courts have told us quite bluntly that what we were doing prior to 1961 was
wrong, and I think we do have the ability and we have been quite successful
in apprehending those who are guilty. The real problem of crime in this
country is the problem of finding a way to incarcerate or to rehabilitate
those whom the police have apprehended and who have been convicted in
All right, thanks, Mr. Weinreb. Mr. Hill, your witness.
Chief McNamara, I think we are agreed that before 1961 when you were in New
York the evidence could be admitted, though it was improperly obtained, and
after 1961, the officer had to show that it was properly obtained. Is that
Now, are you familiar with the study done that showed that before 1961 the
police in New York City stated in the source of their acquisition of
narcotics evidence in 31% of the cases that the drug was found inside the
personal effects on the body of the offender, and after 1961, when that
evidence would not have been admissible, suddenly the number that they said
they found by that sort of search dropped to 9%?
That's quite true, Mr. Hill, but I think you must also realize that this was
a sudden dramatic shift in legal process and reform takes time. I would dare
say today that there has been enormous police reform, and you can't have it
two ways; you've been stating that the police officers are honest citizens
who want to obey the law, and now you seem to be saying that the police are
engaging in wholesale perjury and misconduct, which I strongly object
Well, Chief, I'm not stating, I'm asking: is it your testimony that after
1961 the heroin pushers in New York City began obligingly to carry their
wares on the outside of their clothes in plain sight?
It's my statement that after the police have improved themselves
tremendously in terms of professionalization, that we get a great deal more
cooperation and a great deal more information from the public, and this in
the long run is going to be the way in which crime is prevented, not taking
shortcuts with the Constitution.
Well, let me ask you this, sir. If this rule really acts to deter illegal
searches, how do you account for the fact that such a vast number of
prosecutions today are still being thrown out because the evidence was held
Well, as I've said before, it's a process that takes time, and I think we've
made enormous strides, and I think it would be a terrible shame for
professionalization of police in this country to take a step backwards at
this time. Mr. Weinreb mentioned the great esteem with which the FBI is
held, and I agree with that, and I think the FBI is quite effective because
they communicate to the public an image of a professional law enforcement
officer, which we would like municipal officers also to
All right, sir. Well, after forty years of this rule in Illinois, contrary
to New York, how do you account for the fact that in gambling cases 52% of
the cases were met by motions that the evidence was illegally obtained, and
86% of those motions were granted, that in narcotics cases, after forty
years of this rule, 34% of the defendants claimed that their evidence had
been seized illegally and 97% of those motions were found by the Court to be
true, and in weapons cases, 36% had that motion filed, and 68% of those
motions were found true?
Well, in answer to that, Mr. Hill, I'd like to ask how many cases have been
dismissed because the police used the third degree since the Miranda
decision. I think enormous reform has taken place, and that we can't say
that just because it hasn't been total that the Exclusionary Rule has not
been a very strong force in bringing about reform of police practice . .
Then those figures show you that great progress is being made. Is that your
I think ... I certainly . . .
All right, sir. If you knew a better way to keep police officers from making
illegal searches and yet permitted the courts to receive all material
evidence so as to reach the truth, you would be in favor of that, would you
Mr. Hill, let me say this, sir. You're a very experienced...
You may say it if you will just answer.
. . . and distinguished lawyer. I've been a police officer for over
seventeen years, and it's my feeling that if you take a step back from the
Exclusionary Rule, there is no way that you can control police behavior
because you'll be telling the policeman that by violating someone's
constitutional rights there is nothing really very wrong about what they're
And that is your answer to the question I asked.
I see. All right, sir. Now . . .
Make this very brief.
All right, sir. Aren't many police searches not for the purpose of
prosecution, but to round up stolen goods or to get heroin off the streets,
and there is no case ever made, but they get the goods. There's nothing
about the Exclusionary Rule that prevents that search being conducted
illegally or legally, is there?
Very quick answer. Chief.
I deny that. My experience as a police officer is that the police act to
present evidence into the Court, the only lawful function that I believe we
All right, let's go back to Mr. Weinreb.
Chief McNamara, there has been a lot of talk this evening about other
remedies for violations of our constitutional rights. In your experience as
a law officer and now as Chief of Police, aren't tort remedies the sort of
thing that are being proposed and internal police controls along with the
rule that allows evidence to come into court however it's obtained going to
No, they are not, and I must go back to the statement of that Police Academy
instructor seventeen and a half years ago. He said, "The defendant does have
legal remedy in court, but don't worry about it, men. You just go out there
and search them and bring those people into court." And that's why I believe
very strongly that without the Exclusionary Rule that whole message of
holding the police to lawful behavior will be blurred.
All right, Mr. Hill, back to you for one question.
Well now, your police officer. Major James Campbell, on your police force in
Kansas City said the other day in the Kansas City Star of February 17,
"Courts are more concerned with the way we caught the guy and the way the
trial was conducted than with guilt or innocence. Are you and he in some
disagreement on that?
Well, I think you should go on to see what else he said, sir. He also said
that the problem is it's a treadmill. The people we're convicting are put
out on the street, and that's the real problem in law enforcement today, not
the few marginal cases that you're trying to pretend are responsible for the
bulk of crime.
And you agree with Mr. Campbell.
The real problem is the lack of rehabilitation.
All right. Chief McNamara, we really appreciate having you with us tonight.
Thanks very much. Mr. Weinreb, go ahead.
My second witness tonight is the Honorable George Crockett.
Judge Crockett, welcome to The Advocates.
Judge Crockett is presiding judge with the Recorder's Court in Detroit. As a
member of that court for the past seven years, he has heard in his courtroom
trials of all the crimes—all types of crimes —committed in the city. Judge
Crockett, why are you in favor of retaining the Exclusionary Rule?
Well, there are several reasons. I would mention just three of them. The
primary responsibility of American judges and courts is to uphold the
Constitution and to sit in impartial judgment between the individual and
society. I don't think we uphold the Constitution when we close our eyes to
flagrant violations of the guarantee against unreasonable searches and
seizures, and that is precisely what we do when we say that notwithstanding
the illegal taint on illegally obtained evidence, we will allow our judicial
decisions to be predicated on that. Secondly, American courts traditionally
have insisted that those who seek justice must do justice. You must come
before us with clean hands. The Exclusionary Rule is merely an extension
into constitutional law of the doctrine of clean hands. And third, while the
Exclusionary Rule has not served all of the deterrent effect that we would
like to have it serve, it is, from my own experience, the closest thing to
an effective guarantee, an effective enforcement of the Fourth Amendment
that we judges have been able to devise.
We heard a good deal this evening, Judge Crockett, about the cases that are
thrown out of court for one reason or another because evidence was
unlawfully obtained. What is your view about that kind of case?
The so-called big cases, the important cases, the cases on which the
reputation of the police department and the prosecutor is likely to ride,
are not thrown out because they follow the constitutional mandate, and they
take the necessary precautions to make sure that their case is properly
prepared and that the evidence is admissible.
What are these cases that are thrown out? Who are the victims in your
experience of illegal searches and seizures?
The victims by and large are the so-called little people. The affluent
members of society who drive around in their Cadillacs and Mach IVs are not
stopped illegally by the police and made to spread-eagle over the back of
the trunk of an automobile because the police suspect, and I suppose
rightly, that they will have enough money to get top legal assistance in the
event they decide to prosecute the police, or they will know somebody who
knows somebody who can get to the Chief of Police. But the poor little guy
who has no such recourse is the one who is the primary victim of these
violations of Fourth Amendment rights.
Do you believe that these rules about our constitutional rights which we've
been talking about this evening are too complicated for the police to
understand and follow?
My experience indicates that they're not too complicated. Indeed, one of the
questions just put by Mr. Hill clearly supports the view that the police
learn very quickly. If they have changed the character of their testimony
now so as to indicate that they are complying with the law, I would say the
rule is not complicated.
Make this a very brief question and answer.
We've heard some talk about alternatives to the Exclusionary Rule, Judge
Crockett. What in your view would be their value?
The only alternatives that have been suggested have been two: one is a
criminal prosecution against the officers, and I just can't conceive of
prosecutors who are dependent on police prosecuting the police. They just
don't do it. The second one is sue for damages, but to get the average
lawyer to go into court today on a damage suit is going to cost you at least
$500 paid down out front. The little man and woman whose rights have been
violated don't have that kind of money to retain counsel. Additionally,
you've got to wait two or three years for the crowded condition of the
dockets before his case can be heard. He can't afford to wait that
All right, thanks, Mr. Weinreb. Judge, I don't imagine you've been
cross-examined very much by a lawyer, but here comes Mr. Hill.
And he's just a little leery at the prospect. Your Honor. You, Judge, are
concerned about an area that concerns me, and I want to ask you to assume
this set of facts which I submit does take place. Now, the police in a
community has learned of a new large heroin shipment into that city. The
police begin to frisk, searching about a hundred people without warrant or
anything else, and from five of them they take five large packages of
heroin. They charge no one with any violation, and certainly no one seeks
the return of his heroin that they confiscate, so the mission is
accomplished, they've removed that heroin. What does the Exclusionary Rule
do to protect those ninety-five other people they spread-eagled over those
cars when there's no case ever brought to court?
Well, the Exclusionary Rule only operates in those instances where the case
is brought to court.
So there's no deterrence, is there?
That's the limit of the remedy.
Right, sir. But now, if the man who got spread-eagled could go to a hearing
examiner without the folderol of a full-scale jury trial and by proving that
happened to him get an automatic award of damages out of the pocket of that
policeman, we'd do some good for those little people, wouldn't we?
I've seen these "automatic awards of damages" in other cases for violation
of civil rights, and they usually amount to finding the officer guilty and
the damages at $1 or $10.
Well, suppose the law said, though, as in workman's compensation, that the
damages must be, say, $250.
Then I think you have the problem of whether or not jurors who after all . .
This is not a juror, a hearing examiner only.
Well, you have the problem of whether or not the hearing examiner who also
is a taxpayer and who realizes that whatever amount of damages he fixes has
got to come out of the taxpayers, whether he's going to be disposed to
enforce that law.
Then you despair of any help for those little people, even though I suggest
a possible one, is that correct?
No, I don't. I think the help is one that was suggested at the time the
Exclusionary Rule originated with the Supreme Court. The efficacy of that
rule depends on how much the community attaches in importance to the
constitutional guarantee. If the community tells the police officers,
"You've got to stop this violation of our constitutional command," it will
be stopped. But unfortunately the community doesn't get excited until
something happens that involves everybody. Then they get excited. As long as
it's on a case by case basis, they don't get excited.
Well, Judge, assume for me that there is a case in your court. The accused
is there. I'm going to ask you to assume that compelling physical evidence
of his guilt is there. A police witness is there, but in his testimony you
see that he slipped up and violated the law when he got that evidence. Now
you have before you, if that accused be guilty, you have two people guilty
of crime, don't you? A police officer who violated a constitutional
provision and the accused whose evidence is there showing him guilty. Now
how do you deal with those two people who've broken our laws? Punish them
both, or just dismiss the case and leave both of them to walk on back about
their business while you take up the next case or retire to chambers? How do
you deal with it, sir?
I dealt with that case approximately a month ago when I had two juveniles
before me who were accused of first degree murder, and the testimony clearly
indicated that a confession had been sweated out of them. There was no doubt
in my mind...
I'm not suggesting a confession case.
It's the same thing. It's a violation of the constitutional guarantee
against illegal searches and seizures, which is very close to the Fifth
Amendment guarantee against self-incrimination, both of us know that.
Getting back to the case, I had no reluctance whatever to say that their
constitutional rights had been violated. The evidence was tainted and I
would not receive it.
Now, obviously I would be criticized.
Now, where and . . .
Make this very brief.
Where confession is sweated out, there's some question as to whether it
really was a confession, but a gun is a gun no matter how it gets there,
isn't it? Or a sack of heroin is a sack of heroin no matter how it gets
there? But a confession may not be a confession if some tough policeman has
mistreated those juveniles.
Very quick answer to that.
But you still need the testimony of the officer to prove that it was in the
possession of the person who's charged. And I question the credibility of
any police officer who deliberately violates the Constitution.
All right, back to Mr. Weinreb.
Judge Crockett, what would be the reaction in your community, do you
believe, if the proposal being made tonight on the other side were adopted
and in your court you found yourself compelled to admit evidence obtained in
violation of the Constitution?
There would be a further erosion of the community's confidence in the
integrity of the judicial process. That would be the necessary result. In
most of our metropolitan areas there is a continual battle going on between
the police department and at least the poorer segments of the population.
Courts have the responsibility of sitting in judgment as far as that battle
is concerned. They cannot appear to be partial one way or the
All right, Mr. Hill, back to you for one question.
Judge Crockett, if an individual, not a police officer, breaks a door down,
beats up the accused and seizes incriminating evidence, ties the man up and
deposits him on the District Attorney's doorstep, all of the evidence will
be accepted in court that is derived from that activity, will it
But if a law enforcement officer slips up and gets a faulty search warrant
and brings the same evidence and the same man to the Court, then none of the
evidence will be heard, isn't that true?
All right, that's all, Mr. Hill. Thank you very much, Judge, for being with
us tonight. Thank you, gentlemen. That concludes the cases, and now it's
time for each of you to present your closing arguments. Mr. Weinreb, could
we have yours, please.
Ladies and gentlemen, the issue has been fairly posed to you tonight.
Illegal searches in violation of our constitutional rights do occur. We,
Chief McNamara, Judge Crockett, and I, believe that the Exclusionary Rule is
a message to the community, a message to the police that our rights are not
to be violated. It is, as Chief McNamara told you, essential if we want the
police to understand that we care about the constitutional rights of all our
citizens, and, as Judge Crockett told you, it is essential if the courts,
our main protection against the abuse and disregard of our rights by the
government, are to keep the respect of the community on which law and order
depend. The other side has agreed with us that a remedy is necessary. In
place of the Exclusionary Rule, they offer you the same old illusory
remedies: uncollectible damages and a slap on the wrist for the policeman,
the remedies that never have worked. We must not throw away this vital
protection of your right, your right to be free from unconstitutional
searches and seizures. We ask you to vote “no”.
Thank you. Mr. Hill, could we have your argument.
Thank you, sir. The opposition is perfectly willing to destroy the real
purpose of our courts, to discover truth in order, as they say, to send a
message to errant policemen. Well, it's an indirect message, and it never
gets to him. We say give that policeman this message directly. If you
transgress constitutional rights, you pay with your cash money as a penalty.
If that be a slap on the wrist, it beats a pat on the head by a kindly
judge. And that direct deterrent to unlawful search does not require that
our courts disgrace themselves by consciously ignoring important evidence
and blinding themselves to the truth. Patient Americans have been assured
that the hocus-pocus of the Exclusionary Rule will one day work some sort of
protection for them by overcoming common sense. Sixty years of this
smokescreen is enough. Let's end it now and get on with sensible methods of
dealing with an ever-mounting problem. Vote an emphatic "yes" right now.
Thank you, gentlemen. And now it's time for you in our audience to get into
the act. What do you think about tonight's question? Should courts admit
evidence that police have seized illegally? Send us your "yes" or "no" vote
on a letter or postcard to The Advocates, Box 1974, Boston 02134. What you
think is important. There are now several bills before Congress which would
modify the Exclusionary Rule. How do you want your Congressman to act? Write
us and we'll tabulate your votes and distribute the results to the members
of Congress and others concerned with this question. So remember the
address: The Advocates, Box 1974, Boston 02134.
And if you'd like a
transcript of tonight's debate, send your request to the same address: The
Advocates, Box 1974, Boston 02134. And don't forget to enclose a check or
money order for $2.00 to cover the cost of printing and mailing. You should
get your copy within two weeks of our receiving your request, and be sure to
specify the program by name and your return address.
The Advocates debated the question of whether a federal oil and gas company
should be created to compete with private industry to develop energy
resources. Of the more than 8,000 viewers who sent in their votes, only 28%
said yes, a government corporation should be created, and a large 72% said
no, development of energy resources should remain in the hands of private
enterprise. It should be pointed out that the lobbyists were active in this
compilation of votes, especially in those oil industry states of Texas and
Illinois who contributed noticeably to the total of votes against the
federal oil company.
Next week The Advocates will again be in Chicago,
and let's take a look ahead to that program. (Promotional
And now, with thanks to our advocates and their very
able and distinguished witnesses, we conclude tonight's debate.
The Advocates as a program takes no position on the issues debated tonight.
Our job is to help you understand both sides more clearly. This program was
made possible by grants from the Arthur Vining Davis Foundations, Lilly
Endowment, Inc., and WTTW Public Television for Chicago. This program was