NCJ Number
88030
Journal
Journal of Criminal Law and Criminology Volume: 73 Issue: 3 Dated: (Fall 1982) Pages: 939-964
Date Published
1982
Length
26 pages
Annotation
The exclusionary rule should be replaced by a criminal procedure ombudsman, an independent government official who would investigate alleged police misconduct, publicize investigative results, and authorize the appointment of private counsel at public expense to sue offending officials.
Abstract
Since the exclusionary rule is intended to deter police misconduct in violating protections of citizen privacy and freedom, an approach that can provide more effective deterrence, guard against the release of guilty persons, and provide a remedy for innocent victims of police misconduct is to be preferred to the exclusionary rule. The establishment of a criminal procedure ombudsman to perform certain advocacy and investigative responsibilities in relation to alleged police misconduct is such an alternative. Under the initial proposal for a criminal procedure ombudsman, the following means of enforcement of police legal limitations were provided: (1) publication by the ombudsman of a report outlining violations and nonviolations of pertinent rules by the police; (2) appointment of private counsel at public expense to sue allegedly offending officials in appropriate courts of law following a finding of probable cause to believe a law violation has occurred; and (3) creation of a cause of action against an individual officer in cases where individual responsibility can be assigned or against the Federal Government in those cases where a law violation has occurred but where individual responsibility cannot be ascertained. The proposed revisions to this proposal include the provision of two administrative agencies: a procedural enforcement commission that would seek civil penalties against offending officials through adjudication before administrative law judges and a victims' compensation commission to which both crime victims and victims of police misconduct could go for compensation from the government. Proposals are also offered for the method of selecting the ombudsman, limitation of jurisdiction, the mitigation of lack of jury sympathy toward the plaintiff, and method of victim compensation. A bill for the establishment of a criminal procedure ombudsman is appended, and 85 footnotes are provided.