CrimProf Blog

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

Tuesday, November 28, 2023

Carter on The Exclusionary Rule

Andrew Carter (Arizona State University- Sandra Day O'Connor College of Law) has posted The Exclusionary Rule Is Dead. Long Live the Exclusionary Rule. (30.2 Virginal Journal of Social Policy & Law 117 (2023)) on SSRN. Here is the abstract:
My legal training was the liberal kind, and I started this paper with a vague goal of mounting a spirited defense of the Fourth Amendment exclusionary rule against the incursions of the modern Supreme Court. But the rule I set out to defend—where ill-gotten evidence is excluded irrespective of the underlying crime or the nature of the officer’s misconduct—is dead, and it has been for a while. Frankly, it was doomed from the start. Trial court judges are, under their judicial robes, human beings. Their decision-making was always going to express a “moral” exclusionary rule: one where exclusion of ill-gotten evidence is reserved for unignorable police misconduct and prosecutions of misdemeanors and vice crimes. It is time to accommodate this reality. It is time to adopt an exclusionary rule for the real world.

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