An Invitation to Dialogue: Exploring the Pepperdine Proposal to Move Beyond the Exclusionary Rule

Abstract

The exclusionary rule is not inviolate. As the late Justice Blackmun suggested, if judicial understanding about the effects of the rule leads to the conclusions that it does not achieve the important goals that were its genesis and that it exacts an unacceptably high price from our criminal justice system, the challenge for courts and legislators is to find a better way.' Our 1998 article, If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, (the Pepperdine Study), describes our extensive empirical study of the exclusionary rule and proposes a civil administrative remedy to partially replace the rule. In this symposium we have invited judges, practitioners, and academics to critique our study and our proposal with the goal of elevating the dialogue about the continuing efficacy of the exclusionary rule. First, however, we briefly review our empirical study of the rule and our proposed civil administrative remedy. Then, we present the thoughtful critiques and counter-proposals from our symposium participants. Finally, we respond to the critiques and argue in support of our proposal to radically reform the exclusionary rule.

Keywords: Exclusionary rule