Washington Law Review
The fourth amendment, as is well known, forbids unreasonable searches and seizures by government officers; if the government tries to introduce evidence in a criminal trial that was seized in violation of the fourth amendment, the defendant can get the evidence suppressed. If the evidence is vital to conviction, this means that the defendant will be acquitted simply because the evidence was obtained illegally. This is the famous exclusionary rule of the law of search and seizure. The exclusionary rule is one example of a sanction for governmental miconduct: evidence that may be essential to convicting a dangerous criminal is suppressed to punish or to deter the government's violation of a law, here the fourth amendment. Issues concerning sanctions for governmental misconduct may seem quintessentially legal, but they also have an economic dimension. I shall argue, building on an earlier paper in which I analyzed the fourth amendment's exclusionary rule, that economics can yield valuable insights into when sanctions for governmental misconduct are excessive.
Richard A. Posner,
Washington Law Review Lecture Series,
Excessive Sanctions for Governmental Misconduct in Criminal Cases,
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss4/2