Abstract
This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p*C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, suppressed evidence does not necessarily mean the conviction is lost; and third, often the police have nothing to lose when they choose to commit misconduct - that is, the conviction would not even be possible unless the police commit the misconduct in the first place. Finally, in addition to the very low probability that evidence will be suppressed (p) and the very low cost to the police of a lost conviction (C), there are simply no effective secondary sanctions to fill the void and deter police misconduct. Therefore, the benefit to the police of their misconduct (B) will nearly always exceed the expected costs of the same misconduct (p-C). The economic theory of criminal sanction, therefore, answers the question in the negative: the exclusionary rule does not, and cannot, deter police misconduct. As a result, this Article argues that the application of the exclusionary rule should not be limited or affected in any way by the fallacious concept of deterrence. Further, the exclusionary rule should neither be eliminated nor be replaced with an alternative remedy. Instead, other important societal concerns previously ignored by the Court - concerns such as the integrity of the judiciary and remedying the individual that was actually harmed by the police misconduct - mandate that the exclusionary rule be made inseparable from the underlying constitutional right it was designed to protect. As a result, evidence should be excluded from any subsequent criminal trial whenever a citizen's Fourth Amendment rights are violated.
Recommended Citation
Michael D. Cicchini,
Economics Perspective on the Exclusionary Rule and Deterrence, An,
75 Mo. L. Rev.
(2010)
Available at: https://scholarship.law.missouri.edu/mlr/vol75/iss2/6