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State v. Diprete5/1/1998
05-07, 103 S.Ct. 1974, 1978-79, 76 L.Ed.2d 96, 104-05 (1983), the Supreme Court cautioned that the court's supervisory power was improperly exercised as a means of disciplining prosecutors for error that was not prejudicial to the defendants. In that case the Court of Appeals for the Seventh Circuit had reversed a conviction for prosecutorial misconduct in violating the Fifth Amendment rights of the defendant and declined to apply the harmless-error rule. Id. at 503, 103 S.Ct. at 1977, 76 L.Ed.2d at 102-03. The Supreme Court admonished the court below that "reversals of convictions under the court's supervisory power must be approached 'with some caution,' * * * and with a view toward balancing the interests involved." Id. at 506-07, 103 S.Ct. at 1979, 76 L. Ed.2d at 105. A fortiori the supervisory power exercised in dismissing an indictment must be exercised with maximum caution. Earlier, in United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 1419, 16 L. Ed. 2d 510, 514-15 (1966), the Court reversed the dismissal of an indictment by a District Court on the ground that the government had acquired incriminating evidence in violation of the Fifth Amendment. The Court held that the sanction of dismissal went too far, even if one assumed that there had been a violation of the Fifth Amendment. The Court suggested that although exclusionary rules might bar the admission of testimony obtained in violation of constitutional safeguards, the remedy does not extend to barring the prosecution altogether. Id. The Court suggested that such a drastic step would "increase to an intolerable degree interference with the public interest in having the guilty brought to book." Id. at 255, 86 S. Ct. at 1419, 16 L. Ed.2d at 515.
In United States v. Payner, 447 U.S. 727, 730-31, 100 S. Ct. 2439, 2443-44, 65 L.Ed.2d 468, 473 (1980), a federal district Judge who was outraged by prosecutorial misconduct in violating the Fourth Amendment rights of a person not before the court exercised supervisory power to exclude the use of evidence obtained by this misconduct against the defendant. The Supreme Court made it clear that the defendant could complain only about violation of his own Fourth Amendment right and that the supervisory power could not be used to create an exclusionary rule. Id.
This Court cited United States v. Payner in State v. Jackson, 570 A.2d 1115, 1116-17 (R.I. 1990) (per curiam), when we declined to be persuaded by the decision of the Federal District Court of Rhode Island that created its own exclusionary rule barring admissibility of records for a violation of G.L. 1956 ยง 12-1-12 in the context of a civil rights action. We held that a court had no supervisory power to create an exclusionary rule not authorized by the Legislature. 570 A.2d at 116-17.
In United States v. Santana, 6 F.3d 1, 9-11 (1st Cir. 1993), Federal Circuit Judge Selya reviewed the supervisory power that was used to dismiss a count of the complaint for a purported violation of the due-process clause relating to a third person. He suggested that the supervisory power should be used sparingly. Id. He further suggested that pursuant to Payner; United States v. Hasting, supra, and Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), federal courts should refrain from using the supervisory power to make executive conduct conform to judicially preferred norms by dismissing charges absent a cognizable prejudice to a particular defendant. 6 F.3d at 11.
Thus it appears in federal jurisprudence that the use of supervisory power would not permit a court in the federal system to create exclusionary rules not otherwise constitutionally authorized or to dismiss indictments in the
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