Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule

23 Pages Posted: 16 Feb 2012

See all articles by Kenworthey Bilz

Kenworthey Bilz

University of Illinois College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: March 2012

Abstract

Historically, the Supreme Court has offered two justifications for the exclusionary rule: (1) it protects the integrity of the judicial system from “dirty” evidence and (2) it deters illegal searches by the police. The former justification has mostly fallen out of favor. Today, decisions turn on whether the rule would, in fact, deter illegal searches in a given class of cases. As such, most empirical studies about the rule have focused on whether or not the rule leads to fewer police searches (illegal or otherwise), or to fewer criminal convictions. This study takes a completely different approach, assessing support for the two competing justifications for the rule. Two experiments show support for the integrity justification for the rule, but not for the deterrence justification. Specifically, when deciding whether to exclude evidence found during a search conducted without probable cause, participants are sensitive to a police officer's motive (clean vs. dirty), but not to alternative means of punishing those officers (civil suit, citizen‐police review board). A third experiment examines the integrity rationale in more detail. Participants who were obligated to use dirty evidence at trial disproportionately selected a bottle of Purell over a pen as a thank‐you gift versus participants who were able to exclude that evidence. In other words, the exclusionary rule seems to protect the courts from being metaphorically tainted. These findings are important given that the rule is not constitutionally mandated. The Supreme Court has held that the rule can be ignored to the extent that it (1) does not achieve its goals and (2) undermines the perceived legitimacy of the courts by the public. Given this, the Court needs to be right about what those goals are, and whether or not its current deterrence‐based jurisprudence enhances legitimacy. These experiments suggest the possibility that reinvigorating the integrity justification would serve the ends of the rule better than current doctrine does.

Suggested Citation

Bilz, Kenworthey, Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule (March 2012). Journal of Empirical Legal Studies, Vol. 9, Issue 1, pp. 149-171, 2012. Available at SSRN: https://ssrn.com/abstract=2006128 or http://dx.doi.org/10.1111/j.1740-1461.2011.01250.x

Kenworthey Bilz (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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