It is Broken: Breaking the Inertia of the Exclusionary Rule

Abstract

Change is hard. Inertia begets inertia. The American exclusionary Rule has been in place for thirty-eight years, meaning that two generations of lawyers have practiced in the wake of Mapp v. Ohio, and that the vast majority of criminal law practitioners have never practiced under any other rule. Naturally, any proposal to alter a long standing, entrenched rule in the criminal justice system will evoke serious challenge. Despite the mounting evidence that the Rule fails in its essential function, and the fact that the Rule exacts tremendous costs, the exclusionary rule survives mostly, it seems, because of inertia and the perceived absence of any viable alternatives.

Keywords: exclusionary rule