Dear Professor Dershowitz,
In your recent review of my book, The Constitution and Criminal Procedure: First Principles, you made some good points and some not-so-good points.
Most importantly, you suggest that criminal-procedure debate should move away from a sometimes less-than-honest discussion about “what the Constitution dictates” and toward a more honest discussion of the “policy” issues at stake. I take this to be your way of conceding that the Constitution can indeed be read my way–the exclusionary rule is not constitutionally required, so let’s honestly discuss whether it makes policy sense; pretrial depositions of suspects are not barred by the self-incrimination clause, so we should openly debate their “policy implications.” But to concede this is, basically, to accept 90 percent of my book, which is, after all, about what the Constitution really does and does not say about criminal procedure.
To be sure, you hedge your bets–clever lawyers, you imply, can make the Constitution say whatever they like. The amendments were, you say, “hastily drafted,” their words are “open-textured,” and their history is “often ambiguous.” This hedge, I think, is less good. If you truly think the Fourth Amendment requires exclusion, you should say so, and if not, you should drop the hedge. The Constitution’s words here are not ambiguous, and neither is the history. No one at the Founding–or in the first century after Independence, for that matter–thought that exclusion was required. And although the words of the self-incrimination clause are not self-defining, my reading of the clause tries to do more justice to text, history, structure, and common sense than do the main alternative readings, and you offer no argument that other readings are really more plausible.
Of course, this leaves open the “policy” question about whether legislators today should choose to adopt a statutory exclusionary rule, or bar pretrial depositions, even though the Constitution does not tie their hands here. You say there’s no free lunch: if the Fourth Amendment damage remedies that I propose really did deter, then cops would never find the evidence in the first place, and the truth would never come to light. But this misses a big theme of my book–what I call the causation gap. In many cases today, evidence is excluded even though it could very well have come to light had the police followed the rules to begin with: The cops search without a warrant, and so judges exclude the bloody knife, but had cops followed the rules in the first place, they could have got the warrant and found the stuff anyway.
And so even if damages deter better than the current system, our trials will feature more truthful evidence. (And lots more truthful evidence can be located if pretrial depositions are permitted, in which suspects and their lawyers are obliged to identify other witnesses and hand over incriminating physical evidence like bloody knives.) If cops search my house, find no evidence, and then bop me in the nose for no good reason, the exclusionary rule is no help at all–there is nothing to exclude, since I’m innocent. But a damages remedy could deter this kind of unreasonable stuff, and so here again we see that more deterrence does not equal less evidence.
The big difference between my approach and yours is that I seek to protect the innocent from erroneous conviction, and you are more comfortable letting the guilty go free. But rules that help the guilty often hurt the innocent. Overbroad self-incrimination rules have hurt innocent defendants (as I explain in my second and third chapters), and the exclusionary rule is no help to the truly innocent person whom the cops want to hassle. In fact, the exclusionary rule hurts the innocent by generating stingy Fourth Amendment case law from judges who dislike exclusion.
You end your review by noting that I lack “hands-on experience with our criminal-justice system.” I plead guilty. But is it possible that those lawyers with more experience are sometimes part of the problem?