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Search, Seizure and (False?) Arrest: An Analysis of Fourth Amendment Remedies when Police can Plant Evidence

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  • Dhammika Dharmapala

    (University of Connecticut)

  • Thomas J. Miceli

    (University of Connecticut)

Abstract

The Fourth Amendment prohibits unreasonable searches and seizures in criminal investigations. The Supreme Court has interpreted this to require that police obtain a warrant prior to search and that illegally seized evidence be excluded from trial. A consensus has developed in the law and economics literature that tort liability for police officers is a superior means of deterring unreasonable searches. We argue that this conclusion depends on the assumption of truth-seeking police, and develop a game-theoretic model to compare the two remedies when some police officers (the bad type) are willing to plant evidence in order to obtain convictions, even though other police (the good type) are not (where this type is private information). We characterize the perfect Bayesian equilibria of the asymmetric-information game between the police and a court that seeks to minimize error costs in deciding whether to convict or acquit suspects. In this framework, we show that the exclusionary rule with a warrant requirement leads to superior outcomes (relative to tort liability) in terms of truth-finding function of courts, because the warrant requirement can reduce the scope for bad types of police to plant evidence.

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Bibliographic Info

Paper provided by University of Connecticut, Department of Economics in its series Working papers with number 2003-37.

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Length: 32 pages
Date of creation: Sep 2003
Date of revision:
Handle: RePEc:uct:uconnp:2003-37

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Web page: http://www.econ.uconn.edu/
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  1. Reinganum, Jennifer F., 1986. "Plea Bargaining and Prosecutorial Discretion," Working Papers 616, California Institute of Technology, Division of the Humanities and Social Sciences.
  2. Daughety, A. & Reinganum, J., 1991. "Keeping Society in the Dark : On the Admissibility of Pretrial Nogotiations as Evidence in Court," Working Papers 91-24, University of Iowa, Department of Economics.
  3. Sue H. Mialon, 2008. "The Effects of the Fourth Amendment: An Economic Analysis," Journal of Law, Economics and Organization, Oxford University Press, vol. 24(1), pages 22-44, May.
  4. Muehlheusser, Gerd & Roider, Andreas, 2004. "Black Sheep and Walls of Silence," IZA Discussion Papers 1171, Institute for the Study of Labor (IZA).
  5. Juan Dubra, 2004. "Why do Good Cops Defend Bad Cops?," Econometric Society 2004 Latin American Meetings 342, Econometric Society.
  6. Grossman, Gene M & Katz, Michael L, 1983. "Plea Bargaining and Social Welfare," American Economic Review, American Economic Association, vol. 73(4), pages 749-57, September.
  7. Bowles, Roger & Garoupa, Nuno, 1997. "Casual police corruption and the economics of crime," International Review of Law and Economics, Elsevier, vol. 17(1), pages 75-87, March.
  8. Hugo M. Mialon, 2005. "An Economic Theory of the Fifth Amendment," RAND Journal of Economics, The RAND Corporation, vol. 36(4), pages 833-848, Winter.
  9. Schrag, Joel & Scotchmer, Suzanne, 1994. "Crime and Prejudice: The Use of Character Evidence in Criminal Trials," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 319-42, October.
  10. Atkins, Raymond A & Rubin, Paul H, 2003. "Effects of Criminal Procedure on Crime Rates: Mapping Out the Consequences of the Exclusionary Rule," Journal of Law and Economics, University of Chicago Press, vol. 46(1), pages 157-79, April.
  11. Miceli, Thomas J, 1990. "Optimal Prosecution of Defendants Whose Guilt Is Uncertain," Journal of Law, Economics and Organization, Oxford University Press, vol. 6(1), pages 189-201, Spring.
  12. A. Mitchell Polinsky & Steven Shavell, 1999. "Corruption and Optimal Law Enforcement," NBER Working Papers 6945, National Bureau of Economic Research, Inc.
  13. Dhammika Dharmapala & Richard H. McAdams, 2003. "The Condorcet Jury Theorem and the Expressive Function of Law: A Theory of Informative Law," American Law and Economics Review, Oxford University Press, vol. 5(1), pages 1-31.
  14. Hugo Mialon & Sue Mialon, 2008. "The Economics of Search Warrants," Emory Economics 0810, Department of Economics, Emory University (Atlanta).
  15. Benjamin Lester & Nicola Persico & Ludo Visschers, 2012. "Information Acquisition and the Exclusion of Evidence in Trials," Journal of Law, Economics and Organization, Oxford University Press, vol. 28(1), pages 163-182.
  16. Timothy Feddersen & Wolfgang Pesendorfer, 1996. "Convicting the Innocent: The Inferiority of Unanimous Jury Verdicts," Discussion Papers 1170, Northwestern University, Center for Mathematical Studies in Economics and Management Science.
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Cited by:
  1. Gerd Muehlheusser & Andreas Roider, 2004. "Black Sheep and Walls of Silence," Bonn Econ Discussion Papers bgse17_2005, University of Bonn, Germany, revised Jun 2005.
  2. Hugo Mialon & Sue Mialon, 2008. "The Economics of Search Warrants," Emory Economics 0810, Department of Economics, Emory University (Atlanta).

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