“Lost” Cases

1. “Lost” Cases The Effects of the Exclusionary Rule on Criminal Procedure and Recent Judicial Responses L6172 04/02/07 Kayla Stachniak

2. Why are empirical studies important in the Exclusionary Rule context? • Supreme Court’s 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 Court’s language that the specific Miranda rights are not a “constitutional straightjacket”

3. 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 aren’t given then confessions can be excluded

4. “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

5. “Lost” Arrests due to Exclusionary Rule for 4th Amendment Violations • Davies’ critique of the NIJ study • 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? • Hudson v. Michigan (2006)

6. 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

7. 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

8. 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 NIJ’s 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”

9. 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

10. 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

11. 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 can’t determine possible confounding factors specific to the sites • Are these cities representative of nation?

12. 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

13. Hudson’s 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 "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.‘”

14. Hudson’s Cost-Benefit Analysis • 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 • 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

15. Cases “Lost” due to Miranda Rights • Cassell’s Study vs. Schulhofer’s Critique • Recent Judicial Response? • Dickerson v. United States (200)

16. 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)

17. 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

18. Schulhofer’s 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

19. Schulhofer’s 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 • Cassell’s proposed alternatives are not Constitutional

20. 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

21. 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 • Miranda’s benefits in protecting Constitutional 5th Amendment rights are very high

22. 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 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? • So many confounding factors in “lost” arrest and “lost” case determinations • 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 • Perhaps rightly as many if not most of the studies are methodologically flawed and highly partisan