Everyman's Exclusionary Rule: The Exclusionary Rule and the Rule of Law (or Why Conservatives Should Embrace the Exclusionary Rule)

It should come as little surprise that the exclusionary rule has been the continual target of strong criticism for a very long time.The rule appears to run head-on into a basic principle of justice learned as early as one's playground days: "Two wrongs don't make a right."Professor Wigmore sarcastically captured the rule's vulnerability on this point in an oft-cited quote: Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the constitution.Titus ought to suffer imprisonment for crime, and Flavius for contempt.But no!We shall let you both go free.We shall not punish Flavius directly, but shall do so by reversing Titus' conviction.This is our way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution.Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.' And, of course, Justice Cardozo expressed the same sentiment in one of the most famous judicial lines ever penned, "The criminal is to go free because the constable has blundered." 2 Such criticism becomes only more poignant when the criminal going free is a drug dealer, or worse, a murderer, despite being caught red-handed; a result no one celebrates.Far more of a surprise, then, given such an entrenched critique from a variety of quarters, is that the exclusionary rule has continued to remain a centerpiece of Fourth Amendment jurisprudence for almost a century.3 While some of the rule's