B. Eliminating the Atwater Problem through Neutralization of the Truth-Defeating Exclusionary Rule
The exclusionary rule, as stated above, exists to deter police misconduct. In particular, it seeks to prevent constitutional violations that deny individuals their rights to privacy and freedom from illegal search and seizure. The heading of this section is a bit misleading; a solution to the Atwater problem of "rogue" police misconduct will not directly result from an abolition of the exclusionary rule, or even from a policy shift toward favoring so-called "truth-seeking" rules. However, the bureaucratic reforms that would precede such a policy shift could have an immediate impact on our ability to punish and restrain the Officer Tureks of the American law enforcement system.
The first step in employing such a system would be to create a "judicial police" force, similar to the French model under the purview of the examining magistrates and the attorney generals. At first, this need not be an institutional distinction; a rudimentary division could be implemented even within the same organization following the rules set forth in the French model. For example, the French Code of Criminal Procedure includes the following within the ranks of the judicial police: mayors "and their adjuncts," and officers and noncommissioned officers of the gendarmerie plus those gendarmes that have served longer than five years. Also counted within the ranks of the judicial police are certain members of the National Police, including inspectors general, police commissioners, and "civil servants of the police inspector's corps of the National Police having at least two years of active service in the corps with tenure" appointed by the Ministers of Justice and the Interior following the recommendations of a commission.
While a possible American analogue would inevitably differ --the above model includes officers who would be considered operators at the state and federal level under our system, requiring a different set of laws for each -- the French system sets forth well-defined requirements for an officer or civil servant to meet before she may join the judicial police. Regardless of any possible differences in application, the philosophy is the same: officer training takes on a positive, rather than a negative quality. Rather than setting negative limits on conduct through an exclusionary rule, it enforces positive guidelines for promotion, and sets a premium on education.
Most importantly, it appears to be an effective means of improving the trust factor between citizens and law enforcement. If only the best--or at least, the better--among law enforcement are permitted to wield the investigatory power, then the public will be more inclined to have faith in the police, and will be more willing to cooperate with them.
