Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule

Abstract

While many have observed the randomness of the Fourth Amendment9s application, there has been little attempt to explain why the Supreme Court has allowed its doctrines on search and seizure to become so laden with irrational exceptions. Exceptions to the exclusionary rule are created, according to the Court, when the societal costs of excluding evidence outweigh the deterrent benefits. A look at the exceptions, however, reveals that something other than an attempt to avoid the most inefficient exclusion of evidence explains the exceptions. This essay argues that existing exceptions attempt to obscure the Court9s willingness to find that deterring police officers is ever worth the cost of sacrificing the conviction of the guilty. A single exception could be developed that would better eliminate the most inefficient applications of the exclusionary rule: a good-faith exception for serious crimes. It is argued here that the Court9s concern about acknowledging its acceptance of the exclusionary rule, however, will keep it from adopting such an exception, which would expressly recognize that certain applications of the rule are worthwhile. This essay suggests that the legislature is in a better position than the Court to adopt this alternative exception. The legislature is able to blame the Court for the existence of the exclusionary rule while offering a program of exceptions to the rule that would avoid the most extreme consequences of exclusion that the Court9s rule would otherwise visit upon society. And the new exception would not be without popular appeal: murderers wouldn9t get off on technicalities.