The Law and Economics of the Exclusionary Rule
Jacobi, Tonja, Notre Dame Law Review
The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. This Article uses a law and economics approach and formally models the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule does little to discourage police harassment of ordinary citizens, particularly minorities, potentially even leaving police with a dominant strategy to search; and second, when applied at trial, the rule decreases the benefit of the doubt received by defendants who are most likely to be actually innocent. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem. A means of assessing the appropriateness of this secondary jurisprudence is provided, that promotes better screening between innocent and guilty defendants.
INTRODUCTION I. THE EFFECTS OF THE EXCLUSIONARY RULE AT THE POLICING STAGE A. The Theory and Empirics of Deterrence--The Problem of Selection Bias B. Information and Incentives--Principal-Agent Problems C. Perjury and Aggressive Policing--Substitution Effects D. A Formal Economic Model of the Exclusionary Rule at the Policing Stage II. THE EFFECTS OF THE EXCLUSIONARY RULE IN THE COURT ROOM A. Implications from the Absence of Evidence B. Juror Resistance C. Juror Error D. Perverse Screening E. A Formal Economic Model of the Exclusionary Rule at the Trial Stage III. POSSIBLE SOLUTIONS AND THEM LIMITS A. Jury Instructions Are Not a Solution B. Mitigation Through Evidentiary Rules Is Not an Adequate Solution C. Amending the Exclusionary Rule Will Not Work D. Abolishing and Replacing the Exclusionary Rule E. Judicial Distortion of the Exclusionary Rule F. An Alternative Approach CONCLUSION
The exclusionary rule is the principal remedy of constitutional criminal procedure, and also its most controversial element. For many, the notion of refusing to allow juries to consider relevant evidence because of police misconduct is anathema to the nature and purpose of juridical inquiry. (1) but it is arguably also the only way to deter constitutional violations. (2) The existing literature centers on these normative and empirical questions, but neither has brought any resolution, nor are they considered likely to do so. (3) This Article provides a new approach, applying a law and economics analysis to the exclusionary rule, which allows for a reassessment of its costs and benefits. Rigorously drawing out the implications of the Supreme Court's behavioral assumptions unveils additional costs that the rule imposes. Most significantly, this Article shows first, that the exclusionary rule is unlikely to be effective under most realistic conditions--and thus its benefits are questionable--and second, that its costs fall overwhelmingly on innocents, both defendants and non-defendants. This same analysis provides a means of assessing the secondary doctrinal components of search and seizure law and a mechanism for reforming the most harmful effects of the exclusionary rule.
The exclusionary rule was developed as an automatic and binary mechanism whereby evidence is admitted or not admitted, depending on the violation of a fixed constitutional line, regardless of the substantive unfairness to the defendant or the probative value of the evidence. But after its initial development (4) and the broadening of its application to all the states, (5) the Supreme Court has gradually narrowed the rule through the institution of a number of exceptions, including exempting knock-and-announce violations, (6) creating a good-faith exception for court administrators, (7) and extending that exception to police officers in certain circumstances. …