The Exclusionary Rule Lottery

14 Pages Posted: 5 Nov 2009

See all articles by Eugene R. Milhizer

Eugene R. Milhizer

Ave Maria University - Ave Maria School of Law

Date Written: November 4, 2009

Abstract

Perhaps no Supreme Court decisions about the criminal justice system have provoked more criticism than those involving the exclusionary rule. According to the Court’s most recent pronouncements, the Fourth Amendment’s exclusionary rule is a judicially-created mechanism whose sole purpose is to deter future police misconduct by excluding from trial evidence obtained through unconstitutional searches and seizures. Apart from jurisprudential concerns, the rule’s bare utilitarian premise and simplistic approach render it morally and prudentially objectionable, and, therefore, in need of radical reconsideration or abandonment. These deficiencies can be exposed, in part, by a hypothetical “suppression lottery,” which will be presented later in this article. Before considering the lottery and addressing the modern exclusionary rule’s impoverished normative basis, it is useful to sketch its history and describe its stunning conceptual transformation.

Suggested Citation

Milhizer, Eugene R., The Exclusionary Rule Lottery (November 4, 2009). University of Toledo Law Review, Vol. 39, pp. 755-768, Summer 2008, Available at SSRN: https://ssrn.com/abstract=1499798

Eugene R. Milhizer (Contact Author)

Ave Maria University - Ave Maria School of Law ( email )

1025 Commons Circle
Naples, FL 34119
United States

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