Table Of Contentconstitutional exclusion
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constitutional exclusion
the rules, rights, and remedies
that strike the balance between
freedom and order
james j. tomkovicz
1
1
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Library of Congress Cataloging-in-Publication Data
Tomkovicz, James J.
Constitutional exclusion : the rules, rights, and remedies that strike the balance
between freedom and order / James J. Tomkovicz.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-536924-3 ((hardback) : alk. paper)
1. Due process of law—United States. 2. Criminal procedure—United States.
3. Constitutional law—United States. 4. Presumption of innocence—United States.
5. Burden of proof—United States.
I. Title.
KF4765.T66 2011
347.73’5—dc22
2010039092
______________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
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To Nancy, Vivian, Michelle, and Henry—my reasons,
motivations, and inspirations
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contents
Preface xiii
Introduction xv
chapter 1: the fourth amendment exclusionary rule 1
Introduction 1
A. The Basic Fourth Amendment Rule 1
B. The Origin and Development of the Fourth
Amendment Exclusionary Rule: A Brief Historical
Overview 4
C. The Legitimacy of and the Rationales for the
Fourth Amendment Exclusionary Rule 18
D. The Reach of the Fourth Amendment
Exclusionary Rule 28
1. Evidence Presumptively Subject to Suppression: The
Fourth Amendment Exclusionary Rule Prohibition on
Both Primary and Derivative Evidence 28
2. Proceedings in Which the Exclusionary Rule Operates 32
3. The “Standing” Doctrine: A Restriction of the Individuals
Entitled to Evidentiary Suppression 35
4. A Possible “Culpability” Limitation on the Scope of the
Exclusionary Rule 41
5. Exceptions to the Fourth Amendment Exclusionary
Rule 42
E. Refl ections on the Fourth Amendment
Exclusionary Rule 58
chapter 2: fifth and fourteenth amendment exclusion
of confessions 61
Introduction 61
A. The Basic Fifth Amendment Privilege and Due Process
Clause Rules 61
B. A History of Fifth and Fourteenth Amendment
Exclusion: The Origins and Evolution of the Dual
Constitutional Bars to Coerced Confessions 63
viii contents
1. Common Law Precursors: The “Nemo Tenetur” and
“Voluntariness” Doctrines 63
2. The Origins and Development of the Dual Constitutional
Bars to Involuntary Confessions 65
C. The Nature of and Rationales for the Due Process
and Fifth Amendment Rules 81
D. The Reach of the Fourteenth and Fifth Amendment
Rights to Exclusion 86
1. Evidence Subject to Suppression under the Due
Process Clause and the Privilege against Compulsory
Self-Incrimination 86
2. Proceedings in Which the Rights to Exclude
Apply 91
3. Individuals Entitled to Exclude Coerced
Confessions 94
4. Exceptions to the Exclusionary Commands of the Due
Process Clause and Fifth Amendment Privilege 96
E. Refl ections on the Fifth and Fourteenth Amendment
Rights to Exclusion 104
chapter 3: the m iranda exclusionary rule 107
Introduction 107
A. The Basic M iranda Exclusionary Rule 107
B. The Origin and Transformations of the M iranda
Exclusionary Rule: A Historical Account 110
C. The Rationales for and Legitimacy of the M iranda
Exclusionary Rule 122
D. The Reach and Operation of the M iranda
Exclusionary Rule 132
1. Evidence Subject to Exclusion: The Narrow Scope of
Miranda’s Rule of Inadmissibility 132
2. Proceedings in Which the Miranda Rule Bars
Statements 136
3. “Standing” to Suppress Statements Under Miranda 139
4. Exceptions to the Miranda Exclusionary Rule 139
E. Concluding Refl ections upon the M iranda
Exclusionary Rule 151
contents ix
chapter 4: the massiah doctrine: sixth amendment
exclusion of confessions 155
Introduction 155
A. The Basic M assiah Suppression Doctrine 156
B. The Inception and Development of M assiah ’s Sixth
Amendment Exclusion Doctrine: A Brief History 159
C. The Justifi cations for, Nature of, and Legitimacy of
the M assiah Suppression Doctrine 173
D. The Scope and Operation of the M assiah
Exclusionary Rule 182
1. Evidence Subject to Exclusion: The Presumptive Reach of
Sixth Amendment Suppression 182
2. Proceedings in Which the Sixth Amendment Bars
Evidence 188
3. “Standing” to Raise a Sixth Amendment Exclusion Claim:
The Individuals Entitled to Massiah’s Suppression
Remedy 194
4. Exceptions to the Massiah Exclusionary Rule 195
E. Concluding Refl ections upon M assiah ’s Sixth
Amendment Exclusionary Rule 217
chapter 5: sixth amendment exclusion of eyewitness
identifications 219
Introduction 219
A. The Basic Sixth Amendment Bar to Eyewitness
Identifi cation Evidence 220
B. The Origins and Development of Right to Counsel
Suppression of Eyewitness Identifi cations 222
C. The Justifi cations for and Legitimacy of Sixth
Amendment Exclusion of Eyewitness Identifi cation
Evidence 236
D. The Scope and Operation of the W ade-Gilbert
Exclusion Doctrine 243
1. Suppressible Evidence: The Presumptive Scope of
Right-to-Counsel Exclusion of Identifi cation
Evidence 244
