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Lost Cases

• The Effects of the Exclusionary Rule on Criminal
  Procedure and Recent Judicial Responses

Kayla Stachniak
L6172 04/02/07
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Why are empirical studies important in the
Exclusionary Rule context?

• Supreme Courts reliance on cost-benefit
  calculations in this area
• Empirical studies pre- and post-Leon
• When the Court was considering whether a good
  faith exception to the exclusionary rule for
  physical evidence should be added and the effects
  of that exception after it was endorsed in Leon
• Empirical studies post-Miranda
• Due to Courts language that the specific Miranda
  rights are not a constitutional straightjacket

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The Exclusionary Rule

• Exclusionary Rule for physical evidence
• Designed to promote 4th Amendment prohibition
  against illegal searches and seizures
• Good faith exception so that evidence is not
  necessarily excluded due to violations
• Miranda Rights
• Designed to protect 5th Amendment right against
  self-incrimination
• If any of the four warnings arent given then
  confessions can be excluded

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Lost Cases

• What is a lost case?
• Cases lost due to the exclusionary rule for
  physical evidence are often seen in terms of
  cases prosecutors refuse to take due to illegal
  searches or cases dismissed due to successful
  motions to suppress
• Cases lost due to Miranda rights are typically
  looked at in terms of changes in confession rates
  (i.e. confessions that were never obtained
  because of Miranda) and how this affects
  successful prosecution
• Inherent difficulty in comparing empirical
  studies in this area as there is no agreed upon
  definition of what a lost case is

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Lost Arrests due to Exclusionary Rule for 4th
Amendment Violations

• Davies critique of the NIJ study
• NIJ cited in Justice Whites concurrence in
  Illinois v. Gates (1983)
• Davies noted in U.S. v. Leon (1984)
• Uchida and Bynum Study
• Recent Judicial Response?
• Hudson v. Michigan (2006)

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NIJ Study (1982)

• Methodology
• OBTS data of 86,033 felony cases declined by
  California prosecutors
• Prosecutor-reported reasons for declining to file
  criminal charges after an arrest
• Drug arrest samples from two LA prosecutors
  offices
• 259 drug arrests data specifically collected for
  study
• Results and Conclusions
• lost arrests 4.8 of felony arrests rejected
  for prosecution
• Greatest impact on drug cases lost arrests
  30 of felony drug arrests rejected for
  prosecution
• Study relied on in Illinois v. Gates

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Davies Critique of the NIJ Study (1983)

• Critique of the Methodology
• Two invalid statistical conclusions
• Rejected arrests is not the proper baseline
  appropriate baseline is all arrests
• Percent of felony drug arrests rejected is
  invalid because it is based on an atypical sample
  of less than 300 cases should be based on
  statewide felony drug arrest statistics
• Inappropriate samples, omission of readily
  available and pertinent data, slanted
  interpretation of data evident in analytical
  choices

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Davies Critique of the NIJ Study

• Results of Reanalyzing the Data
• Arrests lost due to illegal searches no more
  than 0.8 of felony arrests in California
• This estimate is probably still too high as it
  uses NIJs problematic data
• Felony drug arrests lost 2.4 using statewide
  data
• Conclusion
• Nationwide comparison is important
• Other studies report numbers between 0.5 - 0.8
• Costs of exclusionary rule are marginal
  especially considering ambiguous nature of lost
  arrests
• Study noted in Leon footnote 6 but dismissed as
  small percentages mask a large absolute number

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Uchida and Bynum Study (1991)

• Methodology
• Data taken from 2115 warrant applications during
  two 3 month periods in 7 anonymous jurisdictions
  around the country
• In addition to looking at exclusion of evidence,
  looks at why the evidence was excluded and the
  seriousness of the offense
• Two units of analysis primary warrant and
  individual suspect

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Uchida and Bynum Study

• Results
• Lost Cases 1.4 of all defendants
• court granted motion to suppress evidence and
  dismissed case
• Most serious offenders released were those
  charged with possession of cocaine
• Conclusions
• Cost of exclusionary rule is slight when police
  obtain a search warrant
• Few criminals are freed and when they are crimes
  are typically non-violent

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Critique of Uchida and Bynum?

• Only considers cases where warrants were issued
  and where charges were actually filed
• Does not give us any information about instances
  where evidence was excluded because police failed
  to obtain a warrant at all or where prosecutors
  may have decided not to file charges due to
  problematic warrants
• Only really gets at effect of good faith
  exception and even that not terribly well
• Anonymous sites
• Weakens analysis as we cant determine possible
  confounding factors specific to the sites
• Are these cities representative of nation?

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Recent Judicial Response

• Hudson v. Michigan (2006)
• Holding Knock-and-announce violation does not
  require suppression of evidence found in the
  subsequent search
• Necessary but insufficient condition Evidence
  would not have been obtained but-for the illegal
  search
• Cost-benefit calculation

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Hudsons Cost-Benefit Analysis

• Suppression of evidence, however, has always
  been our last resort, not our first impulse. The
  exclusionary rule generates "substantial social
  costs," which sometimes include setting the
  guilty free and the dangerous at large. We have
  therefore been "cautious against expanding" it,
  and "have repeatedly emphasized that the rule's
  'costly toll' upon truth-seeking and law
  enforcement objectives presents a high obstacle
  for those urging its application. We have
  rejected "indiscriminate application" of the
  rule, and have held it to be applicable only
  "where its remedial objectives are thought most
  efficaciously served," --that is, "where its
  deterrence benefits outweigh its 'substantial
  social costs.

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Hudsons Cost-Benefit Analysis

• Court doesnt cite specific empirical evidence
  but makes reference to assertions from the
  empirical literature and cases where empirical
  evidence has been used
• Costs of excluding evidence would far outweigh
  the benefits
• Costs
• Flood of claims and resulting extensive
  litigation
• Violence against officers and destruction of
  evidence as police would be inclined to wait
  longer than necessary
• Sometimes letting the guilty go free
• Benefits
• Deterrence benefits are not great as the
  incentive to violate knock-and-announce is so
  low
• Besides which, suppression of the evidence is not
  the only deterrent civil suits are already a
  substantial deterrent

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Cases Lost due to Miranda Rights

• Cassells Study vs. Schulhofers Critique
• Recent Judicial Response?
• Dickerson v. United States (200)

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Cassell Study (1996)

• Methodology
• Data from 12 jurisidiction-specifc before and
  after studies that purported to measure the
  change in confession rate due to Miranda
• Average drop 16.1
• Data from 13 studies to determine how often a
  confession is necessary for successful
  prosecution (subjective)
• Average estimate 24
• Direct costs of Miranda (change in confession
  rate due to Miranda) X (cases in which
  confessions are necessary to convict)

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Cassell Study

• Results and Conclusions
• Cases lost because of Miranda 3.8 of all
  criminal suspects questioned
• In real numbers, this is 28,000 cases lost
  against suspects for index violent crimes
  79,000 cases lost for index property crimes and
  probably an additional 500,000 non-index cases
  lost
• Better alternatives with less costs videotaping
  confessions with no questioning cut-off
  requirement

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Schulhofers Critique of the Cassell Study (1996)

• Critique of Methodology
• Only looking at immediate post-Miranda world
  overstates costs
• Problem with time-series analyses in general
• Possible multiple causes long-term trends,
  close-in-time events, instability
• Methodology problems in individual studies relied
  upon
• Sampling, lack of equivalence for groups
  compared, lack of control for other causal
  variables
• Failure to weight studies for national crime
  distribution
• 11 urban studies, 1 suburban study

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Schulhofers Critique

• Result of Reanalyzing the Data
• Making necessary adjustments results in only
  0.78, not 3.8
• This figure probably still overstates the cost as
  it represents the necessity of a confession to
  convict at trial plea bargains do not actually
  represent lost cases
• Fallacy of looking at adjusted attrition figure
• Cassells proposed alternatives are not
  Constitutional

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Recent Judicial Response

• Dickerson v. United States (2000)
• Holding Congress does not have the authority to
  overrule Miranda
• It is a Constitutional decision, and the Court
  declines to overrule it at this point
• Legislative alternative 3501 is not equally
  effective at protecting 5th Amendment right
• Cassell was invited to act as an amicus curiae as
  neither side was willing to argue the proposition
  that 3501 was an appropriate alternative to
  Miranda

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Dickerson Cost-Benefit Analysis

• Court does not make explicit references to social
  science evidence
• The disadvantage of the Miranda rule is that
  statements which may be by no means involuntary,
  made by a defendant who is aware of his rights,
  may nonetheless be excluded and a guilty
  defendant go free as a result. But experience
  suggests that the totality-of-the-circumstances
  test which 3501 seeks to revive is more
  difficult than Miranda for law enforcement
  officers to conform to, and for courts to apply
  in a consistent manner.
• Risks of totality-of-the-circumstances test are
  too great and thus outweigh any costs of Miranda
• Mirandas benefits in protecting Constitutional
  5th Amendment rights are very high

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Conclusions

• Who is right?
• No one agrees on what would constitute an
  excessive cost
• The statistics do have meaning, though
• Unable to measure the benefits
• Deterrence cant really be quantified
• How do we know the costs arent really evidence
  of the benefits? (for instance lost confessions
  might really represent decline in egregiously
  coerced confessions)
• Can we ever get at an answer empirically?
• So many confounding factors in lost arrest and
  lost case determinations
• How can we know the Exclusionary Rule is really
  the cause when charges arent filed after an
  illegal search or when a conviction isnt
  obtained after an assertion of Miranda rights?
• The Court seems to choose which empirical
  evidence it will rely on based on the policy
  outcome it desires
• Perhaps rightly as many if not most of the
  studies are methodologically flawed and highly
  partisan