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Exclusionary Rule as Fourth Amendment Judicial Review

NCJ Number
American Criminal Law Review Volume: 49 Issue: 1 Dated: Winter 2012 Pages: 179-225
Rohith V. Srinivas
Date Published
47 pages
This article examines the constitutional necessity of the fourth amendment exclusionary rule.
Few legal doctrines are cheered, jeered or even thought about as much as the fourth amendment exclusionary rule. This is largely because the rule's proponents--who want a robust rule--and opponents--who want to do away with it altogether--are miles apart when it comes to the rule's theoretical underpinnings. For its part, the Supreme Court has charted a middle course, retaining the rule as a quasi-constitutional remedy while limiting its application. But the Court's approach is analytically confusing and unsatisfying to most. Notwithstanding all of the attention paid to the exclusionary rule, the natural understanding of the doctrine has been largely overlooked. As a response to another branch's violation of the Constitution, the exclusionary rule is best understood as an aspect of judicial review. This article offers a new and original comparison of the decision to exclude unconstitutionally obtained evidence with the decision not to apply unconstitutional legislation. The comparison reveals (1) that courts are obligated to exclude unconstitutionally seized evidence for the same reasons that they are required to refuse to apply unconstitutional legislation and (2) from a conceptual perspective, the exclusionary rule is merely the form judicial review takes in the fourth amendment context. Thus, the exclusionary rule should be understood not as a circumstances-dependent remedy but as a judicial obligation incumbent on courts to follow. (Published Abstract)