The Immoral Application of Exclusionary Rules

45 Pages Posted: 6 Mar 2008 Last revised: 14 Dec 2010

See all articles by Todd E. Pettys

Todd E. Pettys

University of Iowa - College of Law

Date Written: March 6, 2008


In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment's guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens' deliberative autonomy when it restricts speech based upon fears about what that speech might cause citizens to believe or about how that speech might cause citizens to behave. Drawing upon the work of Jeremy Bentham, Immanuel Kant, Thomas Scanlon, and others, this Article contends that a court infringes upon jurors' autonomy in a morally problematic way when it refuses to admit relevant, readily available evidence. The Article argues that this infringement is especially troubling because jury service is a vital component of the American system of self-government, a domain in which citizens' autonomy interests are particularly strong. The Article focuses on three major exclusionary rules: the rule barring the admission of relevant evidence believed to pose a risk of unfair prejudice, the rule barring the admission of relevant hearsay, and the rule barring the admission of relevant character evidence when offered to prove how a person behaved on a particular occasion. The Article contends that, while there are occasions when applying these rules is morally permissible, the existing rules sweep far too broadly, infringing upon jurors' autonomy in ways that cannot be morally justified.

Keywords: evidence, exclusionary, immoral, prejudicial, hearsay, character

JEL Classification: K10, K40, K41, K49

Suggested Citation

Pettys, Todd E., The Immoral Application of Exclusionary Rules (March 6, 2008). Wisconsin Law Review, No.3, p. 463, 2008, U Iowa Legal Studies Research Paper No. 08-08, Available at SSRN:

Todd E. Pettys (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States
319-335-6814 (Phone)
319-335-9098 (Fax)

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