The Exclusionary Rule Lottery
14 Pages Posted: 5 Nov 2009
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.
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