The Exclusionary Rule
![handle is hein.journals/hjlpp26 and id is 125 raw text is: THE EXCLUSIONARY RULE
GUIDO CALABRESI
If there is a litmus test to distinguish between so-called liberals and
so-called conservatives in the United States, it is the exclusionary
rule. More than one's views on abortion, more than one's views on
law and economics, more than one's views on Bush v. Gore,I one's
position on the exclusionary rule is viewed as a reliable indicator of
the side on which one is situated. To liberals, it is a pillar of privacy;
it is essential to protect individuals from predations on the part of the
3
police. To conservatives, it is an absurd rule through which
manifestly dangerous criminals are let out because the courts prefer
technicalities to truth.4
Of course, I am not talking about evidence whose veracity is made
doubtful as a result of the means by which it was obtained, such as
confessions extracted through physical or psychological torture.
Rather, I am talking about evidence whose validity or truthfulness
is unaffected or actually increased as a result of how it was gathered,
yet where the method of obtaining the evidence ostensibly violates
constitutional or other legal commands. Consider, for example, illegal
wiretapping, warrantless searches, and stops that do not meet even the
* Judge, United States Court of Appeals for the Second Circuit, and Sterling Professor
Emeritus of Law and Professorial Lecturer in Law at Yale Law School.
1. 531 U.S. 98 (2000).
2. See, e.g., Bradley C. Canon, Ideology and Reality in the Debate Over the
Exclusionary Rule: A Conservative Argument for its Retention, 23 S. TEx. L.J. 559, 559
(1982) ([T]he decade old debate over the rule's impact is essentially an ideological one-
the values inherent in the rule are attractive to liberals and bothersome to conservatives.);
Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule
in the Chicago Criminal Courts, 63 U. COLO. L. REv. 75, 75 (1992) (noting that the
exclusionary rule has caused intense debate between liberals and conservatives and that
the debate is driven more by ideological commitments than by empirical evidence about
the rule's effects); cf. William J. Stuntz, Miranda's Mistake, 99 MICH. L. REv. 975, 975
(2001) (asserting that the exclusionary rule, with Miranda warnings and the death penalty,
has served as an ideological marker separating conservatives from liberals).
3. See, e.g., Yale Kamisar, Comparative Reprehensibility and the Fourth Amendment
Exclusionary Rule, 86 MICH. L. REv. 1, 43-45 (1987).
4. See, e.g., Daniel E. Lungren, Victims and the Exclusionary Rule, 19 HARV. J.L. &
PUB. POL'Y 695, 695-97 (1996).](ViewImageLocal?handle=hein.journals/hjlpp26&div=17&collection=&method=preview&ext=.png&size=3)
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The Exclusionary Rule
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