The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule

Date

2010

Journal Title

Journal ISSN

Volume Title

Publisher

Texas Tech Law Review

Abstract

Explores the rhetorical and historical arc of these two competing creation stories. In Part II, we will review the development of the majestic conception of the exclusionary rule from it inception in Boyd on through its refinement in later cases. Part III will turn to the rise of the "mere evidentiary rule" creation story of the exclusionary rule, where Justice Cardozo stands out as the Justice who provides much of the foundational thinking. The final part traces the juncture at which these two narratives crossed in history-when the majestic conception lost its dominance and the evidentiary rule conception gained preeminence.

Description

Keywords

Exclusionary Rule, Government illegality and judicial integrity, Exclusionary Rule parallel to the presumption of innocence, Fifth Amendment privilege, Exclusionary Rule as part and parcel of the Fourth Amendment right, Merely evidentiary Exclusionary Rule

Citation

Scott E. Sundby and Lucy B. Ricca, The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule, 43 Tex. Tech L. Rev. 391 (2010-2011)