Well into the 19th century, this sensible view of the Fifth Amendment’s letter and sprit dominated. Following a long line of earlier precedents, Congress during the Civil War passed a statute allowing the government to force criminal suspects to tell all pretrial and then to use the information to track down physical evidence or eyewitnesses. In debates over the bill, one senator minced no words: The suspect’s interrogation might “lead to other testimony that may throw light on the subject, whereby in the concatenation of events he may be convicted of crime. Well, sir, I hope it will be so.” With this understanding of the bill’s basic purpose and effect, President Lincoln added his signature to the law in 1862.
In 1892, the Supreme Court cast aside this statute, and in a series of later rulings eventually turned the Fourth and Fifth Amendments upside-down. In effect, the court said that whenever an unreasonable Fourth Amendment search or seizure had taken place, or whenever a suspect had been required to provide information or leads to investigators, all the reliable evidence generated by these actions—the “fruits” of the search, seizure, or interrogation—must be excluded from the criminal courtroom even if (indeed, especially if) these fruits are extremely reliable evidence of the criminal’s guilt. This is the so-called “exclusionary rule,” and it is a pure judicial creation, providing windfalls for the guilty and no real comfort for innocent victims of government misconduct.
These modern rulings are the real problem.
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