Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule

In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary rule entirely. I suggest that the Supreme Court might already be willing to abandon the rule, provided that Congress enacts reforms aimed at making the threat of financial liability for Fourth Amendment violations more robust.

I close by identifying several ways in which Congress could help pave the way for the exclusionary rule’s demise.