Is the Exclusionary Rule Worthwhile?

By Osborne, Evan | Contemporary Economic Policy, July 1999 | Go to article overview

Is the Exclusionary Rule Worthwhile?


Osborne, Evan, Contemporary Economic Policy


I. INTRODUCTION

An important principle of twentieth-century American jurisprudence is that evidence acquired through improper conduct by the state cannot be used to convict a criminal defendant. The U.S., however, is the only industrial democracy, common law or otherwise, in which courts must throw out tainted evidence in criminal trials. The U.S. Supreme Court decisions establishing and expanding on this principle have collectively come to be known as the "exclusionary rule." Although the rule had its origins in arguments about the morality of obtaining a conviction while relying on improperly obtained evidence, its primary modern justification is that it deters illegal conduct by the state.

However, an unexamined premise of this belief is that if illegally acquired evidence may be thrown out, decreasing the probability of conviction, then the police, prosecuting attorneys and other law-enforcement officials have an increased incentive to obey the rules. This paper analyzes the strength of this incentive. In doing so, improper conduct is assumed to be socially costly. Illegal searches, fabricated confessions, and other violations subject to the exclusionary rule are assumed to be worthy of deterrence in their own right. The question to be answered is how the rule performs in deterring such misconduct. The answer, based on principal-agent analysis, is that absent a carefully crafted compensation rule for those personnel, it performs poorly. The rule is questionable not just because of any costs associated with lost convictions but because it does not sufficiently deter law-enforcement violations.

Although the rule can be traced back over 80 years, deterrence was not always an important part of its jurisprudence. The principle of excluding evidence that was obtained in violation of constitutional rights can be traced to Weeks v. U.S. [232 U.S. 383 (1914)]. The Supreme Court overturned the conviction of the defendant, ruling that government efforts to convict a defendant could not be "aided" by evidence obtained through a warrantless search of the defendant's home by a federal marshal. The principle was extended to illegal searches entered into evidence in state courts in Mapp v. Ohio [367 U.S. 643 (1961)], to verbal evidence obtained in the course of a warrantless search by Wong Sun v. U.S. [317 U.S. 417 (1963)], and to confessions obtained without informing the defendant of his constitutional right not to incriminate himself in Miranda v. Arizona [384 U.S. 436 (1966)]. The deterrence principle was completely absent in Weeks, with the Court deriving the rule as necessary to make the Fourth Amendment meaningful, but was included as a rationale for the rule in Mapp and subsequent decisions.(1)

In 1974 deterrence became the centerpiece of exclusionary-rule jurisprudence in U.S.v. Calandra [414 U.S. 338 (1974)].(2) The putative trade-off between deterrence benefits and costs of erroneous trial results has motivated the recent carving out of "good faith" exceptions. U.S. v. Leon [468 U.S. 897 (1984)] established the principle that excluding evidence obtained with a facially valid search warrant that was later ruled invalid served no purpose because no additional deterrence could be obtained by such a rule. The same logic is found in Nix v. Williams [467 U.S. 431 (1984)], in which the Court held that evidence that would have been inevitably discovered absent constitutional violations should be admitted. In Arizona v. Evans [514 U.S. 1 (1995)], the Court's rationale for expelling evidence was that the court clerk whose error was challenged by the defendant was unlikely to be deterred by such an action because of his tenuous relation to frontline law enforcement.(3)

Although deterrence is now inextricably woven into exclusionary-rule jurisprudence, the missing link in this reasoning has been the relation between the expulsion of illegally obtained evidence and law-enforcement incentives.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Is the Exclusionary Rule Worthwhile?
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.