Why Does the U.S. Have an Exclusionary Rule?

By Kristopher A. Nelson in

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In my view, the fact that criminal procedure rules are judge-made led fairly directly to the exclusionary rule. Put simply, the exclusionary remedy is the one remedy that judges can completely control. There are a variety of ways to enforce rules of criminal investigations, such as lawsuits, criminal prosecutions, and internal discipline. But all of these alternatives tend to require the cooperation of other branches. The rules governing civil lawsuits are largely under the legislature’s control. Legislatures can regulate jurisdiction, create procedural hurdles, limit damages, and the like. And criminal prosecutions and internal discipline require the cooperation of the executive branch. Someone in the executive branch needs to see the violation as a major problem and needs to take action to enforce the law.

Interesting article by Orin Kerr. See: