Improbable Cause: A Case for Judging Police by a More Majestic Standard

Abstract

This article presents findings from an empirical study of judicial orders in one Midwestern federal district court over a twenty-four month period. The study analyzes trial court decisions to determine whether, as scholars often contend, judges consistently side with the prosecution when a defendant claims that the police lied during the criminal investigation of her case. The study also looks at the frequency with which defendants make such arguments, the types of case in which defendants claim police lies, and the strength or weakness of the evidence in cases that do and do not persuade trial judges that the police have lied. Relying on findings from the study, the article concludes that trial judges are probably perpetuating police perjury by failing to denounce police dishonesty with their rulings. The article then uses the findings to argue that the Supreme Court’s current conception of the exclusionary rule naturally leads trial judges to deny motions to suppress and undermines ideals a majority of the Court purports to advance. The article ultimately argues for Justice Ginsburg’s “more majestic” conception of the exclusionary rule, which better promotes values of a dependable justice system.