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86 Mich. L. Rev. 1 (1987-1988)
Comparative Reprehensibility and the Fourth Amendment Exclusionary Rule

handle is hein.journals/mlr86 and id is 23 raw text is: COMPARATIVE REPREHENSIBILITY AND
Yale Kamisar*
It is not . . . easy to see what the shock-the-conscience test adds, or
should be allowed to add, to the deterrent function of exclusionary rules.
Where no deterrence of unconstitutional police behavior is possible, a
decision to exclude probative evidence with the result that a criminal
goes free to prey upon the public should shock the judicial conscience
even more than admitting the evidence.
So spoke Judge Robert H. Bork, concurring in a ruling that the
fourth amendment exclusionary rule does not apply to foreign
searches conducted exclusively by foreign officials.1 A short time
thereafter, when an interviewer read back the above statement and in-
vited him to comment further on the subject, Judge Bork responded:
[One of the reasons] sometimes given [in support of the exclusionary
rule] is that courts shouldn't soil their hands by allowing in unconstitu-
tionally acquired evidence. I have never been convinced by that argu-
* Henry K. Ransom Professor of Law, University of Michigan. A.B. 1950, New York Uni-
versity; LL.B. 1954, Columbia University. - Ed.
In writing this article I profited from conversations with Albert Alschuler, Tom Davies, Jerry
Israel, Wayne LaFave, Myron Orfield, Fred Schauer, Herman Schwartz, and Peter Westen.
1. United States v. Mount, 757 F.2d 1315, 1323 (D.C. Cir. 1985). Judge Bork wrote sepa-
rately to address more directly Mount's alternative argument that a federal court should use
its supervisory power over the administration of federal criminal justice to exclude evidence
in cases where foreign law enforcement authorities secure evidence by means which 'shock the
judicial conscience.' 757 F.2d at 1320. Bork regarded United States v. Payner, 447 U.S. 727
(1980) (even where government's violation of a third party's rights is purposefully illegal, the
supervisory power does not authorize a federal court to exclude evidence that was not obtained
in violation of defendant's fourth amendment rights) as a more appealing case for applying an
exclusionary rule than a case where foreign officials have engaged in misconduct, 757 F.2d at
1322, and he maintained that in light of Payner we clearly lack supervisory power to create any
exclusionary rule that expands the rule the Supreme Court has created under the Fourth Amend-
ment, 757 F.2d at 1320. I believe that Payner is a most unfortunate decision, see Kamisar, Does
(Did) (Should) the Exclusionary Rule Rest on a Principled Basis Rather Than an Empirical
Proposition?, 16 CREIGHTON L. REv. 565, 636-38 (1983), but I read that case the same way
Judge Bork does.
Judge Bork then went on to say that even if a federal court had the power sometimes to
exclude evidence obtained through illegal foreign searches, he would still disagree with the
case law and the suggestion in the Mount majority opinion that, in the exercise of its supervisory
power, a federal court should adopt a shock-the-conscience test to determine what evidence is to
be excluded. 757 F.2d at 1323 & n.6. It was in this setting that Judge Bork made the observa-
tion quoted in the text. For a long, hard look at the federal supervisory power generally, see
Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits
on the Authority of the Federal Courts, 84 COLUM. L. REV. 1433 (1984).

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