A Constitutional Mystery: Did the Founding Fathers Intend to Bar Admission of Illegally Seized Evidence?

0:00Yeah, great stuff on the Fourth Amendment today. This is also a topic that I do a lot of research on. I'm Roger Roots. I teach at the New York Institute of Technology in Long Island, New York. And I'm doing research specifically on the Fourth Amendment Exclusionary Rule. And I call it a constitutional mystery because The Fourth Amendment Exclusionary Rule is not specifically mentioned in the Fourth Amendment, it was created by judges. Of course, the Fourth Amendment Exclusionary Rule is the rule of evidence that requires illegally seized evidence to be excluded from the jury or the fact-finder in a criminal trial. It's been controversial for over a hundred years.

0:49And as I said, it does not appear in the text of the actual Fourth Amendment to the U.S. Constitution. The Fourth Amendment just says, the right of the people to be secure in their person's houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue without probable cause, specifically stating, and it has to be under oath. Keep in mind that arrest is also a seizure of the person under the Fourth Amendment. So if you are subject to a false arrest, that is a Fourth Amendment violation. Now, it's controversial because not only is it not explicitly stated in the text, but we really don't have any statements of any of the drafters of the Fourth Amendment regarding exclusion of evidence or the concept of exclusion evidence.

1:38And by the way, I'm still looking, this is a topic of my own research, I'm constantly looking for letters, anything I can find that might suggest that, you know, John Adams or James Madison or any of the framers of the US Constitution or the Bill of Rights thought about it at all, I've yet to find any statement by any of them that suggests they, that I should say that specifically states that they were talking and discussing it. 4th Amendment Exclusionary Rule is also controversial because occasionally it allows guilty offenders to go free and when that happens you know there's often it makes the crime headlines there's at least one case of a quadruple murderer who committed four murders in New York was convicted in lower court and had his conviction overturned on exclusionary rule grounds he was released Later on and committed a fifth murder. Okay, that's true. We have to just it's true There are costs associated with the exclusionary rule at least one quadruple murderer has gone free because of the exclusionary rule and went on

2:51to commit a fifth murder Okay There are numerous scholars Who claim that the Fourth Amendment was never intended that the there was never an intention in the Fourth Amendment? to exclude illegally seized evidence from criminal trial Often, they claim that the Founding Fathers intended for the remedy to be merely a right to sue in civil court, a separate action, so that if you were a victim of an illegal search or seizure, only if you were innocent, the idea is, well, then you could sue in civil court the police officers or the constables or whoever it was who violated your Fourth Amendment rights. That is at least the argument made by the anti-exclusionist crowd.

3:40Here you see one scholar, Pitler, he claims that the founders and the common law recognized a strict non-exclusionary rule and he claims that such a rule prevailed in the 19th century driven by, quote, the common law court's paramount concern with truth-seeking and punishing the guilty, unquote. Now I've done an awful lottalk of research that suggests that is very inaccurate. It's just not accurate. Of course, punishing the guilty might be of value to some extent. Truth-seeking is a value of the courts, but it certainly is not the paramount value of the courts. Here are just some of the scholars who hate the exclusionary rule and for many years they've been publishing book after Article after Article, Attacking the Fourth Amendment Exclusionary Rule And by the way, some of these men I have a great amount of respect for Including Professor Davies at Tennessee Law School Probably one of the foremost authorities on the origins of the exclusionary rule Along with this gentleman, Mr. Kudahy, who Mr. Guillory discussed

4:55But probably Kudahy and Davies are the foremost scholars in the world on the origins of the Fourth Amendment, exclusionary rule, or the Fourth Amendment. Akhil Amar, who's often at Federalist Society conferences, has been attacking the exclusionary rule for years, probably ten Law Review articles, three books. The original was Wigmore, of course, dean of the Northwestern Law School, hated and despised the exclusionary rule Exclusionary Rule, and claimed, I'll show falsely claimed, that it was never even thought about in the early republic. And of course, there are judges on the U.S. Supreme Court, several of them, who have sought to abolish forever the exclusionary rule in recent years.

5:44This is the current Supreme Court. There was a case that came out last year called Herring v. United States, and another case from I believe 2006 called Hudson v Michigan, in which the exclusionary rule was almost abolished. There are at least four members of the current U.S. Supreme Court who seek to abolish the exclusionary rule. And those would be the conservative members of the U.S. Supreme Court, Scalia certainly, Clarence Thomas, Chief Justice Roberts, and Alito. They have not been able to convince Kennedy to come over to their side and to repeal or abolish the exclusionary rule. However, the exclusionary rule, it has to be said, is now teetering on the brink. It could go at any time.

6:34I think it's relatively safe at the moment because, well, Sotomayor, the so-called liberal, will say she's on the court now. I mean, it's safe for the moment. By the way, I want to go back because I just want to say that there are Austrian school scholars who attack the exclusionary rule and I noticed that my friend here, Gil Guillory, in his paper, also cusses the exclusionary rule. Dr. Block has published a Law Review article attacking the exclusionary rule. As long as we have no searches, why not?

7:37is the argument that we have to value the truth, and that juries have a right to know the truth, okay? And also there's an argument that the victims of crime have a right to have all known evidence used in court, okay? But I submit that a better libertarian argument is my argument, an argument in favor of the exclusionary rule and probably aligned with what you might call the liberal democrats of modern American political philosophy and that is it's based on a property right. If the state seizes without due process or without warrant where warrants are needed, property belonging to another person, Well, they have no right to use that property for any reason, just because they state that they have evidentiary value in the property, doesn't give the state any right to use property that it stole without warrant, without process or whatever.

8:41In fact, the true owner is the victim of the search and seizure, doesn't matter if he is a vile, despicable, evil murderer, nonetheless, he's the true owner of the property, and upon I submit that the exclusionary rule is entirely consistent with libertarian principles and entirely consistent with Austrian school principles. Where did the exclusionary rule come from? Most people would say that it came from the 1886 U.S. Supreme Court decision in Boyd v. as United States, which was actually a civil case involved in tax records and a suspicion that a particular business was engaging in tax crimes.

9:36And there was a demand to produce certain business records. The U.S. Supreme Court, those of you who are in the back, maybe you can't quite see the bottom of that slide there, but they looked not only at the Fourth Amendment, but they The Fourth Amendment has no explicitly stated exclusionary rule in its text. The Fifth Amendment does have an explicitly stated exclusionary rule. Nor shall any person be compelled in any criminal case to be a witness against himself. The Supreme Court looked at the Fifth Amendment and said that even though the Fourth Amendment doesn't describe exclusion of evidence, the Fifth Amendment does, and Judge Bradley said that in this regard the Fourth and Fifth Amendments almost run into each other.

10:40So they sort of forged the exclusionary rule of the Fourth Amendment out of a sort of a fusion of the Fourth with the principles of the Fifth Amendment, okay, to create the Fourth Amendment exclusionary rule. Again, it's been controversial for more than a hundred years. This is also from the Supreme Court opinion in Boyd v. United States. This is Justice Bradley. And we doubt that when the Fourth and Fifth Amendments were penned and adopted, the language of Lord Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as furnishing the true criteria of the reasonable and unreasonable character of such seizures. Okay. Now, who was Lord Camden?

11:30Lord Camden was an English judge, he was the Chief Justice of the Court of Common Please in London during the 1760s and many cities in the United States are currently named Camden. Camden, New Jersey is named after Lord Camden. I believe there's a Camden County Alabama as well. Maybe someone knows something about that. But there are many places named for Lord Camden in the current United States. It shows you that the U.S. founding generation revered Lord Camden. He was a libertarian judge in many respects. Many of his rulings were very in favor of individual liberty. Camden Yards, where the Baltimore Orioles play baseball, was named for Lord Camden.

12:17Lord Camden in the year 1765 had authored a very famous case in Anglo-American history entitled Entick v. Carrington. Again, this is 1765, this is in England, and he had also made the connection between search and seizure principles and silence rights, okay, which again, a hundred years later in the U.S., those two principles would come together to form the Fourth Amendment Exclusionary Rule. This is from the 1765 case, Antique v. Carrington, quote, Lord Camden, it is very certain that the law obligeth no man to accuse himself, and it should seem that search for Your evidence is disallowed upon the same principle. So Lord Camden made the connection 250 years ago between silence rights and search and seizure rights.

13:10So my argument is that the Fourth Amendment Exclusionary Rule actually has an ancient pedigree. It's not a startlingly new invention. It wasn't invented in 1886. Of course the 1886 decision boy to the United States referenced the Entick case and so all of these quote-unquote conservative scholars who claim otherwise really are, they really have to hide from the fact that this is an ancient principle that has been sort of divine from the distant past to our present legal situation. And by the way, I recently wrote a law review article, and by the way, anyone who's interested can come up and grab one of these.

13:59I only brought about 25 of them, but, okay, yeah. I recently wrote an article called The Originalist Case for the Fourth Amendment Exclusionary Rule, and I went into a number of legal doctrines that go way back in history that support the idea of excluding illegally seized evidence from court. And by the way, at one time there was a doctrine, well, it was pre-trial habeas corpus. Of course, habeas corpus is a sort of a mechanism in the law, most of us are familiar with the term. It's a term we use today to describe post-conviction remedies.

14:45In other words, after conviction, you know, a habeas corpus petition can be submitted and the court sometimes will spring someone, but in modern American law, it almost always applies after conviction. I document cases in this article where people at one time in American history were able to be sprung from jail pre-trial, pre-trial habeas corpus, submitting that they were arrested without warrant, for example, in circumstances where they needed to have a warrant. Early American courts would occasionally look at such cases and absolutely just spring them right there and issue a writ of habeas corpus, and they would be sprung from incarceration pre-trial.

15:33Of course, that's all gone. We've lost habeas corpus. Today it's such a narrow little writ, it almost never applies, the U.S. Supreme Court recognizes it, of course, all the state courts recognize it. But it's really been narrowed into a very small corner. By the way, I also document in this article that there were always privileges from arrest, and there still are, you know, the U.S. Constitution has a speech and debate clause. No member of Congress can be arrested on the way to Congress. Did you guys know that? There's a speech and debate privilege of a congressman. You cannot arrest him even for murder on the way to Congress to give a speech.

16:18You cannot arrest him in Congress. There's a privilege from arrest. But at one time in American history, there was a privilege from arrest for in some jurisdictions on the way to church, for example. In some jurisdictions, there was a privilege from arrest on the way to election polls, not just for politicians, but for voters, so that even if you were arrested for a vile, heinous crime, rape, whatever, rape, arson, murder, whatever, all you had to show, it's your first appearance in court, was that you had a privilege from arrest and you would be sprung right there. That was, you know, rather, you know, it's startling from today's Legal Perspective.

17:04Also the exclusionary rule is also based on certain, what would you call them, witness, certain evidentiary, well you might call them privileges, the attorney-client privilege, we still have the attorney-client privilege, but at one time there were many more privileges. Some of you know that there is a spousal privilege. The State cannot force your wife to take the stand and testify against you, in most jurisdictions, even today. There were more privileges like that in the past. And I go on about how the exclusionary rule, you know, is largely based on many doctrines. And those kinds of ideas go way back. I just want to go back to this quote from this scholar, Mr. Pitler.

17:54Just read this. He claims that the 19th century common law courts had a paramount concern with truth-seeking and punishing the guilty and that there was a strict non-exclusionary rule and the idea is they allowed all evidence in. It's just not true. It's an absolute, it's a legal myth. It's not accurate at all. The courts of the past had far more, many more exclusionary rules, all kinds of different exclusionary rules. Listen, the rule against hearsay evidence is as old as Sir Walter Raleigh. Okay, we are losing search and seizure freedoms.

18:40We're not gaining them over time. I certainly agree with Mr. Guillory on this.

18:52Okay, now I want to get to some of the more specific research I've been doing just in the past year. And it relates to claims by some scholars that the Founding Fathers weren't even familiar with the Entig v. Carrington case. For a long time it's been suggested that they probably read the Entig v. Carrington case. Professor Davies highly regarded authority on the origins of the Fourth Amendment has had several footnotes in some of his articles suggesting that the founding fathers may not A lot of even been familiar with the Antigue v. Carrington paragraph and that the books containing that case which were first published in any way that could have gotten to the American colonies in the year 1781 and Professor Davies has suggested that there weren't many copies of those books circulating in the American colonies at that time.

20:05So what I'm doing, I'm actually going around to rare book libraries, especially on the eastern, east coast of the United States. And I'm seeking to visit every single known surviving copy of the original N. Tick V. Carrington decision, which is contained in a set of books called Complete Collection of State Trials. Let me just find a picture The complete collection of state trials. As far as I know, I've identified about 120 to 130 surviving copies that survive in rare book libraries in the United States of this set of books published in 1781, which contains the Entic v. Carrington decision. Okay, so in the past year I've been sort of traveling around all these old libraries and this is what these books look like, they're very large, about 18 inches in height, there are several institutions that have two or more sets, Harvard has three sets, Yale has three sets, but what I'm specifically looking for is provenance, the provenance of these books, which means the chain of custody or the prior ownership, so to speak, and it's funny, I'm actually, when I go and I look

21:20of these books. I'm trying to identify any markings in quill, quill pen, any identifying, you know, many people of that era used to write their names, you know, like we do today from the library of such and such. But they would write their names. Books were more expensive then than they are now. And so, you know, I'm looking for any evidence that the owner in 1781 would identify himself by making any marks and specifically whether they made any Marks, next to the Intick v. Carrington decision, which is in Volume 11 of that set, and even more specifically, next to, for example, any underlining or something, the paragraphs that discuss excluding evidence.

22:05Okay, so it's very labor-intensive research. It's sort of hit and miss, mostly miss. It's like looking for a needle in a haystack. Most of the Ivy League institutions, Cornell has several sets of these. By the way, what's really interesting is that I said that some of these are at rare book libraries. There are some of these that are on the stacks at libraries. Just the other day, I was at the University of Georgia. When I flew down here, I flew into Atlanta and took a drive up to the University of Georgia Law Library. On the stacks, which means that the students can actually go and check them out. So these are just barely rare books. My argument is that, remember there are 130 that we know that still exist today and I argue there almost certainly are more and by the way at the University of Georgia I found that they were two sets masquerading as one set.

22:59They had been bound or rebound after the fact and they had been bound together and I found little things like that. But one question is, well, did any quote unquote founding fathers, people who were involved in the Drafting of the Fourth Amendment. Did they have access to these books? Did they own any of these books? And I identified several hits, you might say. At Yale Law Library, there is a set that was owned by, I believe, by Matthew Griswold, who was an early governor of Connecticut. And he actually was the president of the State of Connecticut Ratifying Convention that ratified by the U.S. Constitution.

23:45So that's a hit, you could say. I've identified at least one founding father who owned a copy of the complete collection of state trials, fourth edition, way over here. Where's this little red light thing? Way over there you can see Matthew Griswold, the president, his signature, on the document that approved the U.S. Constitution at the Connecticut State Ratifying Convention. Okay, Chancellor James Kent, a friend of Hamilton, Alexander Hamilton, you could say he was a founding father. He certainly was one of the leaders behind the push, the Federalists really, the enemy, you know, we might say. But nonetheless, he was involved in the constitutional ratification process.

24:32He certainly was promoting the U.S. Constitution at the New York State ratifying convention in Poughkeepsie, New York. By the way, he went on to be a very famous constitutional scholar in the early 1800s. But he had a set. He owned a set that is now currently at the Columbia Law Library in New York City. I should say there are other pamphlets I've identified. Not just that one intake B Carrington case, but there are other pamphlets and sources, especially from England. I've not found any American published documents that suggest the relationship between silent and Search and Seizure rights. However, there are other English pamphlets. There's a pamphlet that I call the Father of Kandor pamphlet written by a pseudonym, Father of Kandor, no one knows who he was, but he wrote this pamphlet called A Letter Concerning Libels, Warrants, Searches and Seizures of Papers, etc. The title takes up the entire first page of these pamphlets. But there are over a hundred and maybe twenty of these currently in rare book libraries in the United States.

25:40The laws of England are to tender to every man accused that they do not oblige him to answer a question that will tend to accuse himself, and then this important statement, how then can it be supposed that investigators may seize and carry off all his papers, and then at his trial produce these papers in evidence against himself? This would be made clear by the law of England. Taking a Man, Give Evidence Against and Accused Himself with a Vengeance." Okay, that's the exclusionary rule, or what became the Fourth Amendment exclusionary rule twenty years later, okay? And it's in that pamphlet. And there are, like I said, over a hundred of those in rare book libraries currently in the United States.

26:30Sometimes they are bound like you see here, or rebound. Often they are bound together with other pamphlets. And what's really interesting is that, you know, let's just face it, it's highly likely that there are larger numbers of these pamphlets who were lost to history, okay, much more than sets of law books. So we don't, if there are 130 that currently survive, let's just assume there were probably many more in circulation in the colonies in the 1760s and 1770s. But one of these copies of the Father of Kandor pamphlet, which is currently at the New York Public Library, of all places, was owned by Robert R. Livingston, who was a member of the Continental Congress and a member of the Five-Man Committee that drafted the Declaration of Independence in 1776, along with, of course, Jefferson, John Adams, Ben Franklin, and Roger Sherman of Connecticut, and he's actually on currency.

27:31You know, there's the old joke, how can you identify who is and who is not a founding father? If he's on currency, he was a founding father. I forget which bill it is, but this picture is on currency. Is it the $5 or the $50, the $20? On the back, this picture is on currency. Yeah. It might be the $2 bill. Yeah, it might be the $2. Anyways, Robert Livingston is on currency. He's the guy with the head behind, between Jefferson and sort of Adams there. Okay, in the back, hiding in the back. But he owned a copy of this father of candor pamphlet. Now here's a bona fide founding father and a framer, to the extent we can all quibble over what that means. But Rufus King was an actual framer of the Constitution.

28:19He was a delegate to the Philadelphia Convention that drafted the Constitution, and importantly he was on the drafting committee that made all those evil and vile changes. Remember, he was a member of that group that was trying to seek greater power, a Federalist. He was on that committee that was changing the apostrophes and the commas, trying to give more power to government. Okay, but nonetheless, he owned several copies of the Father of Candor pamphlets, which are currently held by the New York Historical Society. Okay, so that's a true, and by the way, he also was on the original U.S. Senate that voted for the Bill of Rights. The process was very long. It was a long, drawn-out process.

29:04So there were some people involved in the drafting of the Constitution. And the Bill of Rights came in 1791. He was actually at all levels. He was at the drafting level of the original Constitution. Then he actually was a delegate to the Massachusetts State Ratifying Convention and later a U.S. Senator who approved the Bill of Rights. So there's an actual person who owned a pamphlet discussing the exclusionary rule, and he was a true framer. Okay, now, interesting, George Washington. Okay, you know, there's a website called librarything.com. Some of you might have heard of it. It's a little bit like Facebook for book lovers, Library Thing.

29:50And you can go on Library Thing and list all the books you own and then find out who owns the same books. And then you can chit-chat back and forth with them. But on Library Thing, there's also sort of a sub-group called Libraries of Early America. And they have several original library lists of founding fathers or famous people. Remember, some of the books, some of the lists, the personal libraries of founding fathers, we know. We know, for example, Thomas Jefferson's library, very famously, became the Library of Congress After he left the presidency, I think after the war of 1812, Washington had burned to the ground and then Jefferson sold his personal library to Congress and it became what is now the Library of Congress. It was Jefferson's library. So we know what books Jefferson did and did not have, for example. As far as I know he did not have any of these books. However, and LibraryThing.com, it says that George Washington owned the father of Kandor Pamphlet.

30:54Actually, I'm going up to Boston next week to visit the George Washington father of Kandor Pamphlet. Ben Franklin may have owned. The problem there is, my understanding is, his list of personal books has been commingled by later people, collectors who purchased Some of his books may have added some, may have detracted some, so it's not as clear. But at the Benjamin Franklin collection at Yale University, there are several of these pamphlets in the Benjamin Franklin collection. I've not been able to, shall we say, prove that Franklin owned the two that are in his collection there. But keep in mind that Franklin was a printer, a publisher, a journalist.

31:42We probably owned or read virtually everything that was in circulation, probably. So just my conclusions. The more I look into this, and I'm still working on it, it's an ongoing passion of mine, but I know of no detailed in-depth discussion of search and seizure principles that circulated in the pre-founding American colonies that did not include a discussion of the relationship between search and seizure principles and silence rights. And you know, just think about this, I mean, I'm looking into what people were saying about search and seizure at that time. You can find short little quips that don't mention exclusion of evidence.

32:28But I know of no long work on search and seizure from that period that doesn't at least mention The idea that illegally seized evidence should be excluded, okay? And this, of course, is especially true involving seizures of papers. Remember, there is a direct link to the idea of being a witness against yourself giving oral statements. There is a direct conceptual link between that and writings that you might write. I mean, it's hard to argue that there's no relationship, you know, if you have a right Did the Founding Fathers have access to these? Absolutely, no doubt about it. I've made several hits that indicate that important Founding Fathers own these documents, and again, this is a work in progress. I'm still, there are a lot of libraries I have not yet hit.

33:31And so my overarching argument is that the Fourth Amendment exclusionary rule is soundly based in the original intent of the founding fathers of the U.S. Constitution despite the claims of many scholars otherwise. Thank you.