Hypocrisy, Corruption, and Illegitimacy: Why Judicial Integrity Justifies the Exclusionary Rule

57 Pages Posted: 1 May 2013 Last revised: 7 Aug 2013

See all articles by Andrew E. Taslitz

Andrew E. Taslitz

American University - Washington College of Law

Date Written: April 29, 2013

Abstract

This paper defends the judicial integrity rationale for the exclusionary rule by exploring the meaning of "integrity," integrity's specific function in the judiciary, and the social benefits derived from it. The paper first argues that the exclusionary rule is the only viable remedy for Fourth Amendment violations and that finding such violations without granting an effective remedy both renders the right meaningless and constitutes a form of judicial hypocrisy. The paper explores the social functions of rights and the philosophical and empirical literature on hypocrisy and the judicial form of it to support these points. The absence of hypocrisy is a necessary but not sufficient condition, however, for the presence of judicial integrity. Specifically, judicial integrity additionally requires: (1) a wholeness among judicial words, motivations, and deeds; (2) judicial accountability for these things; (3) the parties' perception of fair procedures, especially the opportunity for effective voice (voice that might make a real difference) about constitutional claims; and (4) the informed public's perception that the courts' actions are legitimate because they reflect the preceding three conditions, not necessarily because the public agrees with any particular court decision. The remainder of this paper explains why each of these conditions is lacking if the exclusionary rule is eliminated or severely limited. This paper is the only one to offer a comprehensive defense of the judicial integrity rationale on philosophical and empirical grounds that are completely distinct from the deterrence rationale for the exclusionary rule. The paper aspires to offer more detailed support for the "more majestic conception" of the exclusionary rule defended by dissenting Justices.

Keywords: exclusionary rule, Fourth Amendment, hypocrisy, corruption, integrity, judicial integrity, rights, remedies, expressive function, legitimacy, illegitimacy, Fourth Amendment

JEL Classification: H80, K14, Z00

Suggested Citation

Taslitz, Andrew E., Hypocrisy, Corruption, and Illegitimacy: Why Judicial Integrity Justifies the Exclusionary Rule (April 29, 2013). Ohio State Journal of Criminal Law, Vol. 10, 2013, American University, WCL Research Paper 2013-18, Available at SSRN: https://ssrn.com/abstract=2258029

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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