The Source-Centric Framework to the Exclusionary Rule

52 Pages Posted: 5 Sep 2007 Last revised: 24 Mar 2008

See all articles by Luke Milligan

Luke Milligan

University of Louisville - Louis D. Brandeis School of Law


This Article posits that there are two distinct lenses through which one can view the exclusionary rule. The first approach, set forth by Justice Holmes in 1920, analyzes the government's sources for evidence rather than the challenged evidence itself. An alternative to Holmes's approach is to focus on the challenged evidence instead of its underlying sources. In this Article I argue that the exclusionary rule is, and should continue to be, governed by the source-centric framework.

The first half of this Article demonstrates that Holmes's source-centric framework is grounded in Supreme Court precedent, that it is sufficiently adaptable, and that it is, as a matter of social and legal policy, preferable to the evidence-centric framework. The Article's second half identifies and analyzes an emerging problem within criminal procedure: the abandonment of the source-centric framework in the name of deterring police misconduct. Along these lines, I pay especially close attention to Judge Richard Posner's "evidence-centric" opinion in United States v. Johnson. In conclusion, this Article offers a solution, explaining in clear terms how future courts can counter underdeterrence all the while remaining true to Holmes's source-centric vision of the exclusionary rule.

Keywords: Exclusionary Rule, Independent-Source Doctrine, Standing

Suggested Citation

Milligan, Luke, The Source-Centric Framework to the Exclusionary Rule. Cardozo Law Review, Vol. 28, No. 6, 2007; University of Louisville School of Law Legal Studies Research Paper Series No. 2008-08. Available at SSRN:

Luke Milligan (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States


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