Research Handbook on Economic Models of Law

Research Handbook on Economic Models of Law

Research Handbooks in Law and Economics series

Edited by Thomas J. Miceli and Matthew J. Baker

One of the great successes of the law and economics movement has been the use of economic models to explain the structure and function of broad areas of law. The original contributions to this volume epitomize that tradition, offering state-of-the-art research on the many facets of economic modeling in law.

Chapter 10: Do exclusionary rules convict the innocent?

Dhammika Dharmapala, Nuno Garoupa and Richard McAdams

Subjects: economics and finance, history of economic thought, law and economics, methodology of economics, law - academic, law and economics


In criminal jury trials, though relevant evidence is presumptively admitted, specific policies can compel exclusion. Some of these exclusionary rules are controversial constitutional interpretations, such as Mirandaís exclusion of unwarned custodial confessions or Mapp v. Ohioís exclusion of evidence obtained from a search or seizure that violates the Fourth Amendment. Other exclusions have an older pedigree and a statutory basis, such as the rule against hearsay and restrictions on the use of prior crimesí evidence and statements made in discussions over a settlement or plea. To be sure, there is a stark difference in the rationales for these rules: hearsay and prior crimes evidence is said to be unreliable in ways that the jury will not fully appreciate and the evidence is therefore excluded in the name of accuracy. By contrast no one claims that the evidence obtained by unreasonable searches or seizures, nor statements made in negotiations between the parties, is unreliable. Here the purpose of its exclusion is to deter police from violating the Fourth Amendment and to facilitate pre-trial resolution. However, these differences do not matter for this chapter where we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the juryís verdict if it were admitted. We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, which is to analyze how juries respond to the existence of such a rule.

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