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September 5, 2011

"Do Exclusionary Rules Convict the Innocent?"

The title of this post is the title of this notable paper from Professors Dhammika Dharmapala, Nuno Garoupa and Richard McAdams, which is now available via SSRN.  Here is the abstract:

Rules excluding various kinds of evidence from criminal trials play a prominent role in criminal procedure, and have generated considerable controversy.  In this paper, we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the jury’s verdict if it were admitted.  We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, focusing on how juries respond to the existence of such a rule.  We show that the impact of exclusionary rules on the likelihood of conviction is complex and depends on the degree of rationality exhibited by juries and on the motivations of the prosecutor.

I have long thought that significant concern about wrongful convictions and significant support for the exclusionary rule were in some conceptual tension, and this paper appears to play out some of these kind of ideas.  Though I certainly believe it can be a principled supporter of the exclusionary rule while expressing vocal concerns about wrongful convictions, I think supporters of the exclusionary rule should acknowledge that they sometimes favor putting procedural concerns ahead of trial accuracy.

September 5, 2011 at 06:54 PM | Permalink


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"putting procedural concerns ahead of trial accuracy."

I think it is putting limits on police power and respecting individual liberties over admitting all evidence (which may or may not have an impact on trial accuracy).

Posted by: Paul | Sep 5, 2011 8:23:26 PM

On the trial level, I think generally the exclusionary rule does not have that much negative effect on the defendant. I didn't read the paper so I can't think of a way exculpatory evidence will be inadmissible because of the exclusionary rule. However, I think the issue is more prominent during the appellate process where AEDPA and Stone v. Powell has routinely prevented evidence favorable for the defense from being admitted.

Posted by: Marco | Sep 5, 2011 9:30:33 PM

A short read for layfolks.


Posted by: Jim Brady | Sep 6, 2011 7:16:16 AM

I want to read the whole paper, this abstract truly catch the reader!

Posted by: no download video poker casino | Sep 6, 2011 10:37:35 AM

I had a somewhat different take on the exclusionary rule a few months back, but still noting that it has been at best a double edged sword:


The worst thing about the unintended side effect that the paper identifies is that exclusion practically never happens. Not only would a juror be wrong to think that way in the first place, he would be factually wrong, as a matter of fact, that any evidence at all is ever excluded.

Posted by: John Regan | Sep 6, 2011 6:59:01 PM

"putting procedural concerns ahead of trial accuracy."

That would only be the case if the exclusionary rule was used to exclude exculpatory evidence, but as far as I know the rule only exists to help defendants, so I do not understand how the exclusionary rule would lead to innocents being convicted.

Look, if you don't apply the exclusionary rule to cases there the police have violated the 4th amendment, then the 4th amendment is a meaningless joke, and police have unlimited power. That's a police state for you. Yes this means that sometimes people who the police/prosecutor know committed a certain crime will go unpunished, but so what? The principle is far greater than the individual case. You can't point to the one injustice you can see (the guy whose house was illegally searched and had contraband getting off) and ignore the multitude of injustices you can't see (the many, many fishing expeditions, invasions of privacy, and outright retaliatory harassment engaged in by police against anyone who they might not like).

The Constitution exists to restrain the government and protect individual freedom. The 4th amendment is the core component that protects the citizenry from the kinds of police states that exist elsewhere. Of course because we have a democracy, the police won't pick on everyone, they will pick on the unpopular types, the minorities, the sex offenders, the political fringe, and so on. Is that supposed to be ok?

Posted by: kk | Sep 7, 2011 7:55:23 PM

John Regan, I don't agree with you that police were honest prior to the exclusionary rule, and only started to lie in response to it. The culture of lying in law enforcement goes far beyond the exclusionary rule. The problem of police using lies to induce false confessions is as old as the profession itself. The reason police lie is simply because no one holds them accountable and there are no real consequences for them if they get caught. If cops got sanctioned/fired for lying to the court, and state courts took it seriously, like some federal courts do, you'd have a lot less of it.

Posted by: kk | Sep 7, 2011 8:06:28 PM

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