Corporate Criminal Prosecutions and the Exclusionary Rule

For well over half a century, the legal system has chosen to exclude some of the most probative evidence possible from criminal trials when the government obtained the evidence in contravention of the Fourth Amendment. This policy of exclusion is based more on a perceived greater need to protect U.S. citizens from governmental abuses than to convict every criminal. Meanwhile, during the same time period in which courts have excluded this evidence, the government has consistently increased the level of criminal enforcement against corporations. The government regularly promotes the idea that corporations are dangerous if left unchecked, and as a result a strong need for criminal prosecutions, new laws, and increased penalties exists. Therefore, on the one hand, the government has increased its pursuit of criminal corporations, and on the other hand, courts exclude from prosecutions the evidence most likely to lead to convictions. This Article examines the possible tension between these two policies. The examination begins with an overview of the ways in which the law treats corporations as “people” in court and entitles them to constitutional rights. It continues with the ways in which corporate criminal prosecutions have arisen and the ways in which courts currently conduct them. This Article then studies the so-called exclusionary rule and its origins as a judicial doctrine that seeks to protect the rights granted under the Fourth Amendment. This Article’s argument demonstrates that corporations may not be entitled to Fourth Amendment protection at all even though they currently receive it. As part of its analysis, this Article examines both the contemporary explanations and historical backdrop for the exclusionary rule. None of the traditional justifications for the exclusionary rule apply effectively to corporations. When it comes to deterrence, the costs of excluding reliable information are higher in the corporate setting than the individual setting, and the benefits are lower. This Article operates within the U.S. Supreme Court’s requirement that a court must conduct fact-specific cost–benefit analysis in every case to determine whether to exclude evidence, and this Article concludes that in the vast majority of corporate criminal cases, the exclusionary rule should not apply. This Article proposes that courts should adopt a default rule that all reliable evidence should be admitted against corporate defendants regardless of its provenance