“Lost” Cases
The Effects of the Exclusionary
Rule on Criminal Procedure and
Recent Judicial Responses
L6172 04/02/07
Kayla Stachniak
Why are empirical studies important in
the Exclusionary Rule context?
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Supreme Court’s reliance on cost-benefit
calculations in this area
Empirical studies pre- and post-Leon
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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
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Due to Court’s language that the specific Miranda
rights are not a “constitutional straightjacket”
The Exclusionary Rule
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Exclusionary Rule for physical evidence
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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
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Designed to protect 5th Amendment right against selfincrimination
If any of the four warnings aren’t given then
confessions can be excluded
“Lost” Cases
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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
“Lost” Arrests due to Exclusionary
Rule for 4th Amendment Violations
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Davies’ critique of the NIJ study
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NIJ cited in Justice White’s concurrence in
Illinois v. Gates (1983)
Davies noted in U.S. v. Leon (1984)
Uchida and Bynum Study
Recent Judicial Response?
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Hudson v. Michigan (2006)
NIJ Study (1982)
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Methodology
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OBTS data of 86,033 felony cases declined by
California prosecutors
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Drug arrest samples from two LA prosecutors’ offices
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Prosecutor-reported reasons for declining to file criminal
charges after an arrest
259 drug arrests; data specifically collected for study
Results and Conclusions
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“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
Davies’ Critique of the NIJ
Study (1983)
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Critique of the Methodology
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Two invalid statistical conclusions:
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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
Davies’ Critique of the NIJ Study
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Results of Reanalyzing the Data
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Arrests “lost” due to illegal searches = no more than
0.8% of felony arrests in California
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This estimate is probably still too high as it uses NIJ’s
problematic data
Felony drug arrests “lost” = 2.4% using statewide data
Conclusion
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Nationwide comparison is important
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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”
Uchida and Bynum Study (1991)
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Methodology:
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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
Uchida and Bynum Study
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Results
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“Lost” Cases* = 1.4% of all defendants
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* court granted motion to suppress evidence and dismissed
case
Most serious offenders released were those charged
with possession of cocaine
Conclusions
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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
Critique of Uchida and Bynum?
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Only considers cases where warrants were
issued and where charges were actually filed
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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
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Weakens analysis as we can’t determine possible
confounding factors specific to the sites
Are these cities representative of nation?
Recent Judicial Response
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Hudson v. Michigan (2006)
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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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Hudson’s Cost-Benefit Analysis
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“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
"cautio[us] 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
"[i]ndiscriminate 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.‘”
Hudson’s Cost-Benefit Analysis
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Court doesn’t 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
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Costs =
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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 =
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Deterrence benefits are not great as the incentive to violate “knockand-announce” is so low
Besides which, suppression of the evidence is not the only
deterrent– civil suits are already a substantial deterrent
Cases “Lost” due to Miranda Rights
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Cassell’s Study vs. Schulhofer’s Critique
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Recent Judicial Response?
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Dickerson v. United States (200)
Cassell Study (1996)
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Methodology
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Data from 12 jurisidiction-specifc “before and after”
studies that purported to measure the change in
confession rate due to Miranda
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Data from 13 studies to determine how often a
confession is necessary for successful prosecution
(subjective)
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Average drop = 16.1%
Average estimate = 24%
Direct costs of Miranda = (change in confession rate
due to Miranda) X (cases in which confessions are
necessary to convict)
Cassell Study
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Results and Conclusions
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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
Schulhofer’s Critique of
the Cassell Study (1996)
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Critique of Methodology
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Only looking at immediate post-Miranda world
overstates costs
Problem with time-series analyses in general
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Methodology problems in individual studies relied
upon
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Possible multiple causes = long-term trends, close-in-time
events, instability
Sampling, lack of equivalence for groups compared, lack of
control for other causal variables
Failure to weight studies for national crime
distribution
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11 urban studies, 1 suburban study
Schulhofer’s Critique
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Result of Reanalyzing the Data
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Making necessary adjustments results in only
0.78%, not 3.8%
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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
Cassell’s proposed alternatives are not
Constitutional
Recent Judicial Response
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Dickerson v. United States (2000)
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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
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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
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.”
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Risks of totality-of-the-circumstances test are too great and
thus outweigh any costs of Miranda
Miranda’s benefits in protecting Constitutional 5th Amendment
rights are very high
Conclusions
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Who is right?
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No one agrees on what would constitute an excessive cost
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Unable to measure the benefits
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The statistics do have meaning, though
Deterrence can’t really be quantified
How do we know the costs aren’t 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?
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So many confounding factors in “lost” arrest and “lost” case
determinations
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How can we know the Exclusionary Rule is really the cause when
charges aren’t filed after an illegal search or when a conviction isn’t
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
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Perhaps rightly as many if not most of the studies are
methodologically flawed and highly partisan