The Exclusionary Rule

It is not always easy to apply the exclusionary rule.  The facts can be ambiguous.  The law may be ambiguous. We have excuses not to exclude evidence like “good faith” or “inevitable discovery.”  So, thinking about the exclusionary rule outside the context of a pending case is highly useful. 

Robert Belanger (Nineteenth Judicial Circuit Florida) has posted Judicial Decision Making and the Exclusionary Rule (Texas Review of Law & Politics, Vol. 21, No. 1, 2016) on SSRN.

Here is the abstract:

This article examines the factors that may influence how judges apply the exclusionary rule. When a suppression issue exists, we trust a judge to determine whether a search was unlawful, but we do not trust the judge to fashion an appropriate remedy, other than the per se exclusion of evidence. Judges may be reluctant to find Fourth Amendment violations because the only remedy for a Fourth Amendment violation is a rule of per se exclusion, a remedy that is often disproportionate to the underlying wrong. This lack of proportionality constitutes overdeterrence, so that the rule will be underenforced.

 

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