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Discussions of the merits of the exclusionary rule usually begin and end with a dilemma not unlike the classic "prisoner's dilemma." Suppression of illegally obtained, but reliable, evidence that leads to the release of a guilty defendant may constitute an injustice and a threat to the safety of innocent citizens. Admitting illegally obtained evidence, however, may encourage police officers to engage in illegal conduct to the detriment of countless numbers of citizens. The premise of the prisoner's dilemma is that the prisoner's choices have been limited by his captor to two, each of which is morally objectionable. The debate over the merits of the exclusionary rule has a similar quality, but is this necessary? Are we really faced with only two choices: abolish or weaken the rule (and risk increased police misconduct) or keep the rule (and risk increased criminal conduct)?

Publication Citation

Randy E. Barnett, Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice, 32 Emory L.J. 937 (1983).

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Criminal Law Commons