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The Rule Is Contrary to the Common Law

It is true that the exclusionary rule is inconsistent

with the common law.  Under the common law, a criminal

defendant cannot object to the use of illegally obtained

evidence at trial.  That rule was expressed by a Massachu-

setts court in 1841:

If the search warrant were illegal, or if the

officer serving the warrant exceeded his author-

ity, the party on whose complaint the warrant

issued, or the officer, would be responsible for

the wrong done; but this is no good reason for

excluding the papers seized as evidence, if they

were pertinent to the issue.  When papers are

offered in evidence, the court can take no

notice how they were obtained, whether lawfully

or unlawfully.77

That is an accurate statement of the common law of

England, but the court erred when it imported that rule

into the Massachusetts legal system.  The court failed to

recognize the implications of the separation-of-powers doc-

trine in the search and seizure context, and that failure

led the court to its erroneous legal conclusion.78

Critics of the exclusionary rule miss the point when

they claim to find support for their position in the fact

that the legal systems of other countries admit illegally

seized evidence in criminal trials.79  Comparing the exclu-

sionary rule with the evidentiary rules of other countries

is a fruitless exercise.80  In America, the power to search

is divided between our executive and judicial branches.

The exclusionary rule is a byproduct of our Fourth

Amendment and our unique system of checks and balances.

The "Costs" of the Rule Exceed the "Benefits"

The question of whether the "costs" of the exclusion-

ary rule exceed its "benefits" is hotly contested among

academic researchers.81  But that policy debate has no

bearing on the central contention of this study--that the

exclusionary rule can be constitutionally justified on

separation-of-powers principles.

On that point, it may be useful to draw another anal-

ogy with the Sixth Amendment.  Everyone recognizes that

jury trials are more expensive and time-consuming than

bench trials, but that fact has no bearing on how we

should interpret the jury-trial clause.  The language of