Kenneth Conboy, Anthony Lewis

The Exclusionary Rule

VTR Date: November 19, 1981

Guests: Conboy, Kenneth; Lewis, Anthony


Host: Richard D. Heffner
Guest: Kenneth Conboy and Anthony Lewis
Title: “The Exclusionary Rule”
VTR: 11/19/81

I’m Richard Heffner, your host on THE OPEN MIND. And if you’ve been watching us for a while you know that on this program we’ve always aimed for light, not heat. Argument, controversy, conflict are all fine, but only if they illumine, if they clarify the issues of our times. Well one major issue, of course, that has run like a thread throughout our years of discussion has been crime in American life, and what we can do by way of our police, our judicial system and our historic respect for individual liberty to protect society and ourselves against those who respect neither. Proper concern for the rights of the accused, to be sure, has been, in the best of the American tradition, a basic cornerstone upon which to build an appropriately strong and workable defense of the public safety, and no thoughtful person among us ever really wants to sacrifice either the public interest and well-being to crime or the personal safety of the individual to the inroads of police power in those few instances in which it is uncontrollable. The question then is how to weigh and to balance, how to enable our police to do their job of preventing crime and apprehending criminals sensibly, reasonable and realistically. And how, at the same time to assure society that it won’t be damaged, that we, you and I won’t be damaged by those occasional abuses of power that must arise in any imperfect society. And the point is that, at this time, and in this place in our history, there doesn’t seem to be very much evidence in American life that police power is being widely, fearfully abused.

So today I’d like to focus our program on one particular aspect of this larger problem, of how in a period of rapidly escalating crime we might protect ourselves and society, both by apprehending and punishing the law-breaker and by doing so in a way that is, itself, respectful of the law. I want to focus, not exclusively, but focus a bit on the so-called Exclusionary Evidence Rule that prohibits the use of evidence or testimony obtained by the police by means that violate the accused’s rights, rights that derive from our Constitution, and apply to all Americans. Without being used as a club against the police, our guardians, the purpose of the Exclusionary Rule is to deter improper police conduct. Its confusions, however, seem to some to diminish the capacity of the police to protect each and every one of us.

As the Deputy commissioner in Charge of Legal Matters of the New York City Police Department wrote in a protesting letter to The New York Times sometime back “The central point to be made about the Exclusionary Rule and the injustice that repeatedly and systematically works in American courts is that it cannot be understood; not by police, not by law professors, not by an increasing number of Federal and state judges across the country”. I’ve asked Deputy Commissioner Conboy to join me today together with one of The New York Times’ most distinguished columnists, Anthony Lewis, who has always been in the forefront of matters concerning our rights and our liberties. Gentlemen, forgive me for the long introduction, but as a lay person I’m puzzled by the whole issue and wanted to explain, at least, my own approach to it, and wanted to begin the program, Commissioner Conboy, by asking you whether you really think that the Exclusionary rule has had what some of us would call a chilling effect upon police work.

Conboy: well, I don’t think there’s any empirical evidence and the Supreme Court has, I think recently articulated this point…I don’t think there’s any empirical evidence that would satisfy any searching inquiry that the Rule does or does not deter, in the broad sense. I think we might agree that in individual cases, in hosts of individual cases, the consequence of applying the Rule is to cause a great deal of confusion and frustration on the part of police, and in effect, to lead, in effect, the deleterious consequences of the rule, that is the freeing of a concededly guilty person, the suppression of the truth in a courtroom, the endangering of the public, the overall impeding of the criminal justice process without a specific advantage to society. Let me just give you a concrete case very briefly. A case in New York recently decided by the Court of Appeals, called People versus Earl. A housing police officer is going home off duty in Queens, and he passes a used car lot and he observes at 2:30 in the morning, two huddled figures behind a car with objects in their hands. He doubles back, turns off the lights of his vehicle and later said in court he could not testify that the objects in the hands of these individuals were guns. He was honest. He gave a completely candid assessment of what his subjective state was with respect to the facts unraveling before him. He turns down the lights of his car, took out his weapon and told them to freeze. He searched…one individual had a gun in his hand, and the second person was patted down and he also had a gun. The area was an area that had been ravaged by a very high rate of burglary, the two individuals were arrested, indicted, and there was a litigation with respect to whether the police officer acted on appropriate standards of suspicion before his detention, and of course whether the subsequent search was appropriate.

The Trial Judge ruled that he had, in fact, acted properly. The Appellate Division, comprising of five judges, ruled four to one that he had acted properly. The Court of Appeals in New York, five to four reversed and accepted the one dissent in the Appellate Division that concluded that the actions that the officer observed by his own testimony were as consistent with persons changing a tire, as with criminality. The fact that is was pitch black was not deemed to be relevant. Now what occurs in a case like this? Obviously a person guilty of…two individuals guilty of, at the minimum possessing loaded weapons are released. The policeman who acted in reasonable good faith is frustrated and confused, and what is the purpose of excluding that evidence? Will it deter this officer in the future? Well, an officer, if he believes that he has a basis to proceed on an honest and good faith basis, has a moral and legal duty to proceed and to inquire. So what the Exclusionary rule does, in a case like this, and there are thousands of cases like this that are litigated throughout the courts of our land, the Supreme Court docket is crowded with cases like this, is that it serves really no viable, social good, and it causes a great deal of mischief.

Heffner: Mr. Lewis, what’s your point of view?

Lewis: I find Mr. Conboy persuasive on that particular case. The difficulty with discussing the subject is, as he rather candidly and admirably said, that…is that there is a lack of scientific evidence in the large. You can take the individual case and find it outrageous or satisfactory, and on the facts as stated, I regret the outcome of that case. But, as Mr. Conboy said, there’s no showing that cases like that are very large in number. There’s been a recent study of Federal cases by the General Accounting Office which showed that in only 1.3% of those cases in which an attempt was made, a motion was made in court to suppress evidence because it was illegally obtained. Only in 1.3% of those cases was the motion successful. That is to say that in almost 99%, the evidence was admitted, which doesn’t sound like it’s an overwhelming problem. I think in dealing with this you have to separate a number of things. I don’t want to go on too long because there are actually a lot of intellectual problems in this thing. The first question I would say is you have to decide whether the problem you’re talking about is the rule, that evidence obtained illegally should be excluded from the trial, or whether the problem is in the standard of what is illegal, and it seems to me that in the case we’ve just heard, the difficulty was in the decision that the evidence was not properly obtained. The real problem there was that a rather high-faluting, rather much too attenuated standard was applied in saying that the testimony of the officer could not be admitted. The problem did not lie in saying that the consequence should be the exclusion of the evidence because I think the evidence was properly obtained, and hence the Exclusionary Rule didn’t matter one way or the other. I would rather see…we’re coming to the end…I hadn’t begun at the beginning…

Heffner: (Laughter)

Lewis: …as I had hoped, and I’ll…later I’ll come to the beginning which is history. But at the end of the road, if there is any problem here, and I’ve said I don’t think it’s an overwhelming one, I would say the way to cure it is to try to adopt a more sensible set of standards of what is legal and illegal in the obtaining of evidence, rather than to say that when something is clearly illegal, obtained by brute force, or something that any of us would regard as improper police conduct, it should nevertheless be admitted. I can’t believe that that’s the right answer.

Heffner: But if the courts are always empowered to examine where the lower courts have indeed applied those definitions appropriately and accurately and the Commissioner has just told us about the varying opinions of the various judges…If you maintain the Exclusionary Rule intact aren’t you then subject still to the varieties of interpretations?

Lewis: Yes. It is a dilemma, and it is a dilemma which is not applicable only to the particular question you have raised of the Exclusionary Rule. In my judgment, throughout the American system of criminal justice there are too many appeals. There are too many lengthy processes of every kind, beginning right at the drawing of the jury, which in this country may take days or weeks. In Britain, by comparison, it takes a few minutes or an hour because they have much more rigorous rules. I would like to see the whole system speeded up, but there are values here. We live in a country in which, for historical reasons…and I’ll get back to that beginning some time…there are suspicions of the police. I’m not critical of the police today, particularly, but there’s a long history. That’s why the framers of the Constitution put it in there. That’s why over a period of time these suspicions have existed. Because this is a country which has had racial differences and class differences in which there were concerns. It hasn’t been a homogeneous society like Britain in which everybody trusted the police and you didn’t need rules like this. And I may just say that in Britain that confidence is breaking down and the need for such rules is coming to the fore.

Heffner: But there is no Exclusionary Rule in England or anyplace else. Am I correct in that assumption?

Conboy: Yes. That’s correct. The basic issue I think is not that there ought to be some basis to discourage improper and illegal police conduct which is intentional which is an outright flouting of the Fourth Amendment. I think certainly the New York Police agree that there should be some basis to discourage that, and number one, the proposal that’s been made by the Attorney General suggests that we should have a reasonableness standard. Now the Judge would ask to have a hearing, now the objection often made to that is “Well, that will then be a question of the subjective perceptions of the policemen and it’s not a real standard”. The proposal though is to have the judge consider the subjective state of mind of the officer, but his action must be grounded from an objective assessment of the overall circumstances as being reasonable, and of course the law does that all the time. If someone is indicted for homicide, the law is called upon to make a judgment both subjective with respect to an intention and objective in terms of whether self-defense was appropriate. Furthermore, the Chief Justice has suggested and I think this is a viable alternative to the Exclusionary rue as it now operates, that Congress ought to pass appropriate legislation to provide for an indemnification for persons who are the victims of police misconduct. Again, we often confuse a result which is later found to be inconsistent with a statute or with a case, with a positive aggressive and impudent transgression of a Constitutional value. The final point I’d like to make is, irrespective of whether we would like the police to be deterred by court decisions, if you have repeated confusion at the highest levels of the Supreme Court as was the case recently, for example, in the most recent pronouncement on the Exclusionary rule, the July 1st decisions in two cases called Beltan and Robbins from California and New York. There were nine judges who heard them. They were very similar on the facts. Three judges said that the two searches in question were invalid; three judges said that both were valid and three judges said that one was valid and one was not valid. Now these are justices who have the benefit of evaluating the cases after extensive review. In once case fifteen judges in New York and in another case…and in the California case an appropriate number, they had four law clerks each…they are not making the judgment in an alley at 2 o’clock in the morning with the prospect of a gun in their face. So the practical question here and I think we can agree that police misconduct is a problem; it is an issue and ought to be a very, very sensitive public policy. The court should be vigilant. The only question is, is the Exclusionary Rule, as it is now applied, as a calculus for social good, does it accomplish anything worthwhile? And the suggestion…we both agree that there’s no empirical data to show one way or the other, but what there is data for is that in specific cases, people who commit very serious crimes are free. And I’ll tell you, on the issue of deterrents, I think that there is considerable feeling among law enforcement personnel that the most deleterious effect of the Exclusionary rule is that it emboldens criminals. It may dismay police across the board. It may deter a few who would kick down doors, but there are…we have gun traffic, and a heroin traffic in our large cities today that is a disgrace.

Heffner: Mr. Lewis.

Lewis: I…there’s so many things to say. Your rule that you have suggested which is that judges decide whether the policeman, with whom I have a lot of sympathy at two in the morning in that dark alley, I quite agree with you, it’s a tough spot, acted in good faith, reasonably in good faith. Now just let me ask you a question. Why isn’t that going to lead to the same multiplicity of appeals, and why aren’t you going to have three judges saying, “Yes, they did act in good faith in both cases”, and three judges saying “No, they didn’t act in good faith in both cases, and three saying “I liked what they did in one case, and I didn’t in the other”. Why is it any different?

Conboy: Well, because I think that in that kind of formulation…you see I think the essential problem in the Appellate courts in the country, as by the way reflected in the Earl case, is that while Appellate courts, in their function, are essentially supposed to, and in most other cases do, apply law to an agreed upon state of facts at the trial level. What you have in the Exclusionary Rule case is a constant resettling of facts, you see, to accomplish a polemic end. For example, in the Earl case, if the record at the trial level was that the circumstances were such as not to warrant a conclusion, an objective conclusion that these were two people changing a tire at two in the morning in a private used car lot without any lights, this is speculative and what essentially happens in all of these cases if you read, for example, the Supreme Court…the multiple opinions in the Supreme court in Robbins and in Belton…you have the ultimate decision in upholding the Belton…search in New York, after the Court of Appeals turned it down, is that there was a safety issue involved. The police, yes, they ought to be able to search a jacket in a car on a highway without going for a warrant because the safety was involved. The problem with that rationale, and it was the only one that could muster a plurality, was that the Court of Appeals found that the occupants of the car were in handcuffs and ten feet away from the car. So what do, what do lawyers in police departments tell their rank and file how to proceed in such circumstances? That’s the issue. Now with respect to judges making decisions on whether an officer has acted in good faith or not, it seems to me that the ultimate faith in the process has to be at the trial level and in trial judges. I completely agree that the Appellate review that is now common in criminal cases is most destructive of the system.

Heffner: But you know it seems to me that the major question for a lay person is the one that Cardozo raised: Should a guilty man go free simply because some constable blundered? And that really brings it down. I mean you two seem to agreeing that if, indeed, all the judges agreed that some violation had taken place, some blunder had taken place, then perhaps the Exclusionary Rule can be effective. But why?

Lewis: I think this goes back…gives me a chance to…

Heffner: To be historical?

Lewis: …get at the beginning. (Laughter) Begin at the beginning. Why does this country have a rule that, as you’ve said, other countries don’t? That is because from the beginning of our history we have been more suspicious of authority in this country. We are not a country like Britain where we have a certain respect for the Queen and the government and all that. We began our history in rebellion against the King, and we don’t trust officials. That’s built into every paragraph of the Constitution, and it ought to be and I hope it will remain there. And since 1914, which is when the Federal Exclusionary Rule was laid down, that particular aspect of not trusting officials ha been there. That’s a long time and hence I think when something has been part of our law since 1914 we ought to be very skeptical about changing it. I think it takes a lot of evidence, a lot of practical, demonstrative scientific evidence to persuade me that something that’s been there to protect our citizens against official abuse since 1914 ought to be removed.

Heffner: Mr. Lewis, did you disapprove of the Brown versus Board of Education decision because it reversed a long-standing opinion?

Lewis: Oh, no, I’m not against the Supreme Court changing its mind, not at all. That’s not what you’re asking for in this case. You are asking for Congress to intervene, not to reinterpret the rights of the citizen as was done in the Brown case, but to impose against an unchanged Supreme court view of the rights of the citizen, impose on the Supreme court a rule which takes away some rights of the citizen.

Heffner: Are you suggesting that the court could not, as it interpreted the Exclusionary Rule, now re-interpret it?

Lewis: No, not at all, it could. As I say, that happens and I accept it. And indeed I’m for it because I think courts are quite entitled to say that the world has changed and it no longer makes sense.

Heffner: Won’t you?

Lewis: But that isn’t what’s happening, what’s being sought here. The Attorney General is asking Congress to impose a rule on the Supreme Court and I think it’s rather a …to go further, it doesn’t just apply to the Exclusionary Rule, our particular topic of discussion. I think it applies to the philosophical, historical proposition I have put to you, that we have a system in which deep-down we don’t trust authority. That’s our Constitution. It’s full of protections for that reason, and frankly it does hobble governments. There are presidents and all sorts of people who don’t like what the Constitution does. You know Mr. Nixon had to produce his tapes, very irritating. Wouldn’t happen in any other country, not one, and so on. But, do we want to start a precedent of Congress coming in and saying “We’re telling you what the Constitution means”?

Heffner: Mr. Lewis, suppose…

Lewis: I’m against that.

Heffner: …suppose we say “no”, and suppose Ken Conboy would agree, just for argument’s sake, then we come back to the Exclusionary Rule itself, pure and simple and the capacity of the Supreme court to take it away as it had imposed it. Then what would you say? What would you want the court to do?

Lewis: I, as I’ve said at the beginning, I agree that our system of criminal justice is encumbered by too much law and too much time. I really do, I feel that rather strongly, I think as strongly as Mr. Conboy does. And to focus on the exclusionary Rule itself I…if I were a judge I would work very hard to simplify the rules of what is a legal and what is an illegal search, and I would allow more things as legal. I might even adopt as a rule of judicial construction, a good faith presumption for police conduct. But I wouldn’t remove the ultimate weapon, which is the weapon of excluding the evidence if, as Mr. Conboy has said, it genuinely was obtained in a way that shocks our conscience.

Heffner: You mean you would, in answer to Cardozo, let a guilty man go rather than let a constable blunder?

Lewis: Yes. And the Supreme Court of the United States did not agree with what Cardozo said. He said that as a New York State Judge.

Heffner: Yes.

Conboy: And I would agree that in certain cases the guilty should go free if the Constable blunders, and I think that, I want to be very clear that the…as far as the New York Police is concerned…

Heffner: Excuse me, let me interrupt. Why? Why should a guilty man go free because a Constable blunders?

Conboy: If there is a clear indication in the particular record that a police officer has violated the Constitutional rights of an individual it is clear, I’m not suggesting that he merely applies the law inaccurately or without the precision required that later is demonstrated in an extensive appellate review. If there is a pattern of behavior by a…or a single act by a police officer, and as is currently the case, there is no other remedy to vindicate the overall value in our system, then I think that that is an appropriate thing to do.

Heffner: When do two wrongs make a right? Why should we punish society? Why don’t we find some other way…

Conboy: Justice…

Heffner: Go ahead.

Conboy: Justice Brennan said that “Where there is a clear and egregious violation of the Constitution the courts, the judiciary should not associate itself in partnership, in any of its process”. He said that in Calandra…”with the government”. Now we feel, for example, that certain phases of the Exclusionary rule have not gotten beyond the understanding of the police. Let me give you an example. The Supreme Court in the line-up identification cases in the sixties has required that line-ups and identification procedures be fair. But I would look at that as a rule of evidence. The standards are very clear, and I think by and large police departments can learn from the court’s direction and apply those standards of fairness. The difficulty is when you get away from the clear, the concrete and the definitive as a rule of judicial and police procedure and get into, as I said before, re-settlement of facts in fluid circumstances, and it’s particularly a problem in the Fourth Amendment cases. In substance I think that the…I don’t want to give the impression that I favor the wholesale appeal of the Exclusionary Rule. I don’t. I think it has accomplished a great deal of good. I do want to say though that the Supreme Court…and I just want to respond for a minute to the issue about Congress.

Heffner: We’re not going to give him a chance to respond to what you just said if we don’t let him go now.

Conboy: Okay.

Heffner: Mr. Lewis?

Lewis: I wanted to respond to what you said, your question, “Why do we want society to suffer because the Constable has blundered?”

Heffner: In one minute.

Lewis: In one minute.

Heffner: In one minute.

Lewis: The answer is that society doesn’t suffer. There are lots of things in the Constitution that make it harder to convict criminals. We have a guarantee of jury trials. Doesn’t exist in many countries. We don’t allow courts to force people to testify against themselves. Not the rule in most countries. All of that makes it harder. But we think that makes for a better society where there is less chance of the third degree, and less chance of hanging judges convicting people without juries. We think it’s a better society.

Heffner: Do you really want to put all those together? The blunder on the part of the Constable and the prohibition…

Lewis: No, they’re not exactly the same. I’m merely stating that there is a premise underneath your question that I do not accept: That society suffers. It may suffer if we go too far, and I agree that we have gone too far. The question is how to correct it.

Heffner: The trouble is we can’t go far enough on this program because actually our time is up. Thank you very much for joining me today, Commissioner Conboy…

Conboy: Thank you.

Heffner: …and Mr. Lewis. And thanks, too, to you in the audience. I hope you’ll join us again here on THE OPEN MIND. And meanwhile, as an old friend used to say, “Good night and good luck”.