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University of Iowa News Release


July 6, 2011

Law professor's book makes case against government overreach in criminal trials

Jim Tomkovicz has watched as the United States Supreme Court steadily eroded an accused persons' rights not to have ill-gotten evidence used against them in court.

Rights that were recognized in a series of landmark Court decisions in the 1960s have been whittled away since then to the point where some are all but gone, said Tomkovicz, a law professor at the University of Iowa. He hopes his new book might help reverse the trend. "Constitutional Exclusion: The Rules, Rights and Remedies that Strike the Balance Between Freedom and Order" was published earlier this year by Oxford University Press.

Tomkovicz is an expert on the so-called "exclusionary rules," legal doctrines that prevent prosecutors from introducing evidence of guilt at trial and limiting the government's abilities to investigate crimes and prosecute offenders. The most prominent and well-known of these prohibitions is rooted in the Fourth Amendment prohibition of unreasonable searches and seizures. There are, however, six other constitutionally based rules that require judges to suppress evidence---rules that are rooted in the Fifth Amendment right against self-incrimination, the Sixth Amendment right to counsel, the Sixth Amendment right to confront witnesses at trial, and the Fourteenth Amendment's Due Process Clause.

Tomkovicz said a number of the most controversial exclusion doctrines were announced in landmark rulings by the Warren Court during the 1960s. Mapp v. Ohio, for example, ordered state courts to bar evidence acquired by unconstitutional searches. Miranda v. Arizona concluded that confessions could not be used unless police issued warnings and secured waivers of suspects' rights. And Massiah v. United States held that incriminating statements were barred from trial if the government did not respect an accused person's right to legal assistance. Tomkovicz said that in the past four decades, each of these exclusionary commands has been under constant assault from a number of directions.

"They've been eroding for years, and during the initial years of the Roberts Court, that erosion has accelerated dramatically," Tomkovicz said.

He said that one reason is the Supreme Court's "general hostility toward suppression of the truth" and opposing the release of guilty offenders even if constitutional guarantees sometimes require those consequences.

Another is the implicit assumption that all exclusionary rules are alike. In fact, he said there are distinctly different types of exclusion doctrines, each with its own objectives, and its own constitutional justifications. Some---like the Fourth Amendment exclusionary rule---are designed to enforce constitutional rights outside the courtroom by discouraging illegal police conduct. Others---like the Fifth Amendment bar to compelled confessions and the Sixth Amendment impediment to testimonial hearsay---are fundamental rights that belong to the defendant who is on trial.

"At times, the justices have eroded entitlements granted by the Bill of Rights based on a faulty premise that evidentiary suppression is a deterrent device created by the courts," Tomkovicz said.

In his book, Tomkovicz makes clear distinctions among the seven different constitutional exclusionary rules, illuminating the dangers of failing to accurately identify and be guided by the unique character of each. His hope is that the analyses in the text "will help the legal system reach conclusions more consistent with the fundamental liberties that are the foundations of the exclusion doctrines."

"One aim of the book is to help judges and lawyers make appropriate distinctions among the different exclusionary rules, to prompt them to recognize that the rules are separate, not all of one piece," he said. "Another is to educate the public about the fundamental liberties that are intertwined with and dependent upon the much-maligned exclusion mandates."

More information about the book is available at

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Iowa City, Iowa 52242-2500

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