Duke Student Government President Wants to Exclude Illegal Evidence

With the exoneration of the accused Duke lacrosse players, many are now taking a hard look at the procedures that were used to drag them through over a year of utterly unjustified litigation. FIRE friend Professor KC Johnson has done an invaluable service to our society by chronicling the whole sad story of the case on his blog, Durham-in-Wonderland.

While the majority of the abuses came from the Durham Police and the office of Durham County Prosecutor Mike Nifong, many people—including Elliott Wolf, president of the Duke Student Government (DSG)—are upset with Duke’s handling of the case as well. In a March 29 memo sent to Stephen Bryan, Duke’s Associate Dean of Students and Director of Judicial Affairs, Wolf and the DSG take issue with the fact that Duke “will pursue judicial action against a student based on evidence collected by law enforcement officers that was illegally obtained or otherwise insufficient to serve as the basis for criminal prosecution.” The problems with this were made apparent by the Duke lacrosse case, in which Duke immediately “temporarily” suspended two of the accused students (the third was allowed to graduate because he was only a few days away).

Wolf’s memo is a very well-thought-out explanation of the problems in ignoring fair procedure in the university setting. He writes:

Evidentiary standards exist in the legal system in order to protect the Constitutional rights of citizens as they are investigated and prosecuted. The rule of law requires that the government not break the law in the course of enforcing it, and the legal system’s burden of proof emphasizes the notion of innocent until proven guilty. Under normal circumstances, police officers have no incentive to cite individuals on the basis of illegally obtained or otherwise weak evidence because it will not result in prosecution.

Duke’s willingness to use any evidence, regardless of how it was obtained, undermines those crucial protections. It gives police officers an incentive to issue criminal citations to students on the basis of illegally obtained evidence or evidence that would otherwise not stand up in court because the University will adjudicate the student involved regardless of the strength or nature of the evidence.

This is the very rationale for the “exclusionary rule” in the American court system, but as Wolf points out, this rule is not very effective if police know that someone will punish those against whom they gather evidence in violation of proper procedure. This has the makings of a serious problem on our nation’s campuses. While the lack of an “exclusionary rule” has become an issue at Duke because of the notoriety of the lacrosse case, rules that make a mockery of fair procedures are in effect at colleges across the nation, and mostly go unnoticed, despite the fact that they have led to multiple and serious miscarriages of justice. Due process and fair procedure are vital aspects of liberty on campus that should not be overlooked; without them, even the best free speech policies can be eviscerated by administrators.