CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, October 5, 2012

Milhizer on the Fourth Amendment Exclusionary Rule

Eugene R. Milhizer (Ave Maria School of Law) has posted Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule (Military Law Review Vol. 211, pp. 211-262) on SSRN. Here is the abstract:

In this article, I undertake to debunk five great myths about the Fourth Amendment Exclusionary Rule. First, I debunk the myth that the contemporary exclusionary rule is constitutionally required in order to achieve several objectives, which include but are not limited to deterring future police misconduct. Second, I discredit the assertion that even if the rule is intended only to deter future police misconduct, it is justified because it efficiently accomplishes this objective. Third, I disagree with the contention that even if the present rule is too inefficient in deterring future police to justify its continuation, it can be sufficiently improved by a modification that accounts for the seriousness of the crime or the dangerousness of the criminal. Fourth, I oppose the argument that even if deterrence is insufficient to justify the rule, the rule’s objectives can be expanded to encompass and promote noble aspirations beyond police deterrence, which thereby justify the rule. Fifth and finally, I dispute the moral claim that even if none of the utilitarian justifications for the rule are sufficient, the rule is needed to preserve the integrity of the criminal justice system. Based on all the foregoing, I conclude that the exclusionary rule should be rescinded and replaced with an approach that punishes those who violate the Fourth Amendment while avoiding actions, such as suppression, which can frustrate justice by undermining the efficacy and legitimacy and the criminal trials.

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