The Prosecutor-Oriented Exclusionary Rule

Abstract

The exclusionary rule has long been misunderstood. Scholars and judges perceive it as addressing police officers, warning them that evidence obtained in an unconstitutional search or seizure may be inadmissible in court. But officers typically care little about the ultimate conviction of suspects (as opposed to their arrest) and are therefore minimally deterred by possible suppression of evidence. Even when officers want to prevent suppression, they often do not know the complicated search and seizure rules and do not receive adequate training about them. This Article argues that the exclusionary rule’s deterrent benefits can be better appreciated and realized when understanding the rule as directed primarily to prosecutors, not to police officers. As prosecutor-oriented, the rule promotes lawful policing indirectly, by stimulating prosecutors to proactively encourage local police to adhere to the law. Unlike police officers, prosecutors do fear for the fate of their criminal cases and are therefore motivated to prevent police wrongdoing that could jeopardize them. Prosecutors are also experts on the rules governing searches and seizures in their jurisdiction and know best how to avoid triggering the exclusionary rule. Finally, prosecutors can (and do) positively influence police behavior, despite their lack of formal authority over them. Although many prosecutors around the country have employed various methods to promote lawful policing, others have remained passive. To realize the full deterrent potential of the prosecutor-oriented exclusionary rule, this Article proposes a three-pronged approach consisting of measures grounded in doctrine, politics, and legal ethics.