Document Type

Article

Comments

The Exclusionary Rule, 26 Harvard Journal of Law & Public Policy 113 (2003)

Abstract

If there is a litmus test to distinguish between so-called liberals and so-called conservatives in the United States, it is the exclusionary rule. More than one's views on abortion, more than one's views on law and economics, more than one's views on Bush v. Gore, one's position on the exclusionary rule is viewed as a reliable indicator of the side on which one is situated. To liberals, it is a pillar of privacy; it is essential to protect individuals from predations on the part of the police. To conservatives, it is an absurd rule through which manifestly dangerous criminals are let out because the courts prefer technicalities to truth.

Of course, I am not talking about evidence whose veracity is made doubtful as a result of the means by which it was obtained, such as confessions extracted through physical or psychological torture. Rather, I am talking about evidence whose validity or "truthfulness" is unaffected or actually increased as a result of how it was gathered, yet where the method of obtaining the evidence ostensibly violates constitutional or other legal commands. Consider, for example, illegal wiretapping, warrantless searches, and stops that do not meet even the requirements of Terry v. Ohio.

Date of Authorship for this Version

2003

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