A Libertarian Use of the Exclusionary Rule

What's wrong with the scenario of 1984, in which the average citizen is under constant surveillance by the government? Surely only those who are breaking the law should be concerned that they are being watched constantly. If you are not hurting or stealing from anyone or committing any other crime against anyone, then why should you be concerned by universal surveillance?

One answer is that the government is apt to criminalize things which are not truly wrong. If innocent activity is criminalized, then universal surveillance threatens the innocent.

But this same answer applies to evidence gathered by the police.

We might generally say, then, that to the extent that the government criminalizes innocent activity, then the less government surveillance there is, the better, and by the same token, the less government is able to use evidence gathered by the police, the better. The exclusionary rule, like the absence of universal surveillance, protects us from the criminalization of innocent activity.

But what about truly evil activity? Doesn't the exclusionary rule protect the guilty along with the innocent? Doesn't the exclusionary rule place the innocent into jeopardy by allowing criminals to more freely prey on the innocent?

The violation of the rights of others is by its nature particularly difficult to cover up. A victim who is not murdered is able and motivated to act as a witness and he is also motivated to invite the police onto the scene of the crime, and as for murder, that is also difficult to hide, and the victim's surviving family and associates are motivated to help in the capture and conviction of the perpetrator. In contrast, for instance, a drug dealer or a prostitute and their customer are highly motivated to avoid betraying each other to the state. For this reason, there is particularly little need for universal surveillance to discover crimes with victims, as compared to victimless "crimes", and particularly little need to brush aside the exclusionary rule to prosecute criminals with victims as compared to victimless "criminals". The exclusionary rule disproportionately protects the innocent against bad law, as compared to the guilty against good law.

I end with some responses to Arthur's article on the exclusionary rule.

John and Jack are supected of murder, but Jack has a good alibi and only John is tried.

Such a scenario is possible, but disproportionately, the exclusionary rule protects the innocent against bad law.

However, saying evidence should be discarded is a poor consequentialist decision that violates people's right over their own brain, over the information they should to take into account.

I disagree that the exclusionary rule is a violation of rights. It is, indeed, an impediment on the use by the government of information for a certain end. But it is not a violation of any individual's rights to place such an impediment on the government. Impediments on the authority of the state are not violations of individual rights. It does not violate anyone's right over their brain, because it does not make it illegal for a person to use whatever evidence is available to them to think any thought that they like. What the exclusionary rule prevents is not a person, even a judge, from thinking whatever he will think, but a court from convicting. Everyone who is exposed to the evidence is free to come to any conclusion they like. What employees of the state are not free to do is to employ the authority of their position as agents the state.

This is not a consequentialist moral argument. Regardless of the consequences, it would not be a violation of anyone's rights to place an impediment on the use of the state's authority. Even if that impediment made things worse, it would not be a violation of anyone's rights, because no one has any right to begin with to use the authority of the state. So the argument is not that the good consequences keep the exclusionary rule from being a violation of rights, but that the exclusionary rule is already, for a different reason, no violation of rights, and that it furthermore has a consequence of protecting the innocent against bad law.

Share this