Academic

Pettys on Exclusionary Rules

By Lawrence Solum

Todd E. Pettys (University of Iowa - College of Law) has posted The Immoral Application of Exclusionary Rules (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment's guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens' deliberative autonomy when it restricts speech based upon fears about what that speech might cause citizens to believe or about how that speech might cause citizens to behave. Drawing upon the work of Jeremy Bentham, Immanuel Kant, Thomas Scanlon, and others, this Article contends that a court infringes upon jurors' autonomy in a morally problematic way when it refuses to admit relevant, readily available evidence. The Article argues that this infringement is especially troubling because jury service is a vital component of the American system of self-government, a domain in which citizens' autonomy interests are particularly strong. The Article focuses on three major exclusionary rules: the rule barring the admission of relevant evidence believed to pose a risk of unfair prejudice, the rule barring the admission of relevant hearsay, and the rule barring the admission of relevant character evidence when offered to prove how a person behaved on a particular occasion. The Article contends that, while there are occasions when applying these rules is morally permissible, the existing rules sweep far too broadly, infringing upon jurors' autonomy in ways that cannot be morally justified.

Full post as published by Legal Theory Blog on March 17, 2008 (boomark / email).