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Exclusion of Evidence for Private Privacy Violations

| 3 Comments
I have, on more than one occasion, denounced the rule that evidence obtained through a search or seizure subsequently determined to be a violation of the Fourth Amendment must be suppressed as evidence.  The rule is not in the Constitution, and it is bad policy.  I am in good company in that view, including John Henry Wigmore and Benjamin Cardozo.

Whatever arguments may be made for such a rule when the police do the searching, it is nearly beyond belief that anyone but the most extreme crackpots would think that evidence should be suppressed in a criminal trial because a private party violated a privacy statute.  Yet statutes providing for such exclusion do exist.  Eugene Volokh at the Volokh Conspiracy has this post on a case in which, to paraphrase Cardozo, the child molester may go free, to molest again, because the brother-in-law blundered.

3 Comments

What if the private party obtains the evidence by a method that "shocks the conscience," i.e., torture. Wouldn't there be a substantive due process rule of exclusion? (cf. Chavez v. Martinez)

Evidence obtained by torture should be excluded on the ground that it is unreliable evidence, a whole different thing.

Well, from a harmless error standpoint, I don't see how the conviction doesn't stand.

The defense really couldn't deny that he said it, now could it?

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