1. Mapp v. Ohio, 367 U.S. 643 (1961).Google Scholar

2. See, e.g., Stephen Schlesinger, Exclusiongry Justice (New York, N.Y.: Marcel Dekker, 1971) (“Schlesinger, Exclusionary Justice”).Google Scholar

3. Wolf v. Colorado, 338 U.S. 1359 (1949).Google Scholar

4. 367 U.S. at 652-53.Google Scholar

5. See, e.g., United States v. Calandra, 414 U.S. 338 (1974); United States v. Leon, 468 US. 897 (1984).Google Scholar

6. See Jonathan D. Casper. Kennette Benedict, & Janice Kelly, Cognitions, Attitudes, and Decision-Making in Search and Seizure Cases, 18 J. Applied Soc. Psychology 93 (1988) (“Casper, Benedict, & Kelly”); Jonathan D. Casper, Kennette Benedict, & Jo L. Perry, Juror Decision-Making, Attitudes, and the Hindsight Bias (American Bar Foundation Working Paper 8702) (“Casper, Benedict, & Perry”).Google Scholar

7. We do not deal with the issue of the potential effects of liability insurance on the efficacy of the tort remedy. To the extent that cities and their officers are indemnified against such judgments, the punishment and deterrence rationales for the remedy are called into question. Even if tort suits tended to produce large judgments against officers or their employers, having insurance coverage focuses concern about risk on increased premiums or cancellation rather than on actual losses. As a result, the disincentives provided by the tort suits would be smaller than those typically cited by proponents of this remedy.Google Scholar

8. See, e.g., Monroe v. Pape, 365 US. 167 (1961), and Monnell v. Dept. of Social Services, 436 U.S. 658 (1978).Google Scholar

9. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1976).Google Scholar

10. Haring v. Prosise, 426 U.S. 306 (1983).Google Scholar

11. In addition to awards for compensatory and punitive damages, successful plaintiffs may also recover attorneys' fees under 42 U.S.C. S 1988. Although we know of no systematic work on the incidence and size of such awards, it is possible that awards of attorneys' fees may provide some deterrent effect even when damage awards themselves are small.Google Scholar

12. Project: Suing the Police in Federal Court, 88 Yale L.J. 788-90, 793 (1979) (“Project, 88 Yale L.J.”).Google Scholar

13. Theodore Eisenberg, Section 1983: Doctrinal Foundation and an Empirical Study, 67 Cornell L. Rev. 482 (1982).Google Scholar

14. id. See tables I and 11 at 550-51.Google Scholar

15. Id. at 528.Google Scholar

16. Project, 88 Yale L.J., at 789 (cited in note 12). For similar conclusions about low incidence and size of awards, see Ann F. Ginger & Louis Bell, Police Misconduct Litigation-Plaintiff's Remedies, 15 Am. Juris. Trials 555 (1968).Google Scholar

17. Project, 88 Yale L.J., at 813.Google Scholar

18. Candace McCoy, Constitutional Tort Litigation: Controlling the Police? (paper presented at 1987 Annual Meeting of American Political Science Association, Chicago).Google Scholar

19. Project, 88 Yale L.J., at 789.Google Scholar

20. Herbert Packer, The Limits of the Criminal Sanction (Stanford, Cal.: Stanford University Press, 1968).Google Scholar

21. Project, 88 Yale L.J., at 800.Google Scholar

22. Id. at 797-99.Google Scholar

23. Newman, Jon O., Suing the Lawbreaker: Proposals to Strengthen the Section 1983 Damage Remedy of Law Enforcers' Misconduct, 87 Yale L.J. 454 (1978).Google Scholar

24. Id. at 454. Other commentators have noted similar bias against defendants. For example, Foote observes that “the moral aspects of the case”-that is, the difference in respectability between plaintiff and defendant-tend to operate against substantial awards. See Caleb Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 400 (1955). A note in the Virginia Law Review makes a similar point, suggesting: “If the plaintiff is poor, uneducated, or has a criminal record, his credibility will be low.” See Note, Grievance Response Mechanisms for Police Misconduct, 55 Va. L. Rev. at 918 (1969).Google Scholar

25. Some opponents of the exclusionary rule have argued that guilty suspects ought not be entitled to sue or recover damages. For example, Schlesinger argued: “The guilty victim has no claim to compensation for deprivation of privacy since his privacy… has not been invaded.” He suggested that officers should be punished for illegal searches regardless of the guilt or innocence of the suspect, but that the guilty victim is not entitled to recovery. See Schlesinger, Exclusionary Justice 71 (cited in note 2). The Supreme Court decided that guilty suspects could recover in Haring v. Prosise, 426 U.S. 306 (1983), but the evidence about juror bias against defendants suggests that in practice jurors may introduce de facto limitations on recovery by guilty victims.Google Scholar

26. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 422 (1976). Burger did not, however, give up on the idea of damage actions as alternative to the exclusionary rule. He urged in his Bivens opinion that reliance be placed on a “quasi-judicial” remedy, in which suits might be filed against police officers in a new tribunal similar to the Court of Claims. For a useful discussion of some of the doctrinal issues in tort remedy cases, see Candace McCoy, Civil Liability for Fourth Amendment Violations-Rhetoric and Reality, 22 Crim. L. Bull. 461 (1986).Google Scholar

27. Monroe v. Pape, 365 US. 167 (1961).Google Scholar

28. Monnell v. Dept. of Social Services, 436 US. 658 (1978).Google Scholar

29. Schlesinger, Exclusionary Justice 77-78 (cited in note 2).Google Scholar

30. Newman, 87 Yale L.J., at 457 (cited in note 23).Google Scholar

31. Project, 88 Yale L.J., at 817-18 (cited in note 12).Google Scholar

32. Newman, 87 Yale L.J., at 454-55.Google Scholar

33. See generally Casper, Benedict, & Perry (cited in note 6).Google Scholar

34. For a discussion of the hindsight bias, see Baruch Fischhoff, Hindsight # Foresight: The Effect of Outcome Knowledge on Judgment Under Uncertainty, I J. Experimental Psychology: Human Perception & Performance 288 (1975). For a more complete discussion of the role of outcome information on juror decision-making, see Casper, Benedict, & Kelly and Casper, Benedict, & Perry (both cited in note 6).Google Scholar

35. The policy manipulation for city liability involved omitting references to the city as a defendant in several places in the stimulus materials: in the judge's introduction of the case, at two points in the plaintiff's argument, at three points in the defendant's argument, in the reference to the parties at the beginning of the judge's instructions, and in the case caption at the top of the sheet on which damage awards were set by jurors. In the manipulation of the plaintiff, the stimulus materials were changed in the following ways: The judge's introduction referred to the case as a suit by the U.S. government on behalf of Mr. James Duncan. The plaintiff's argument began with a statement in which the attorney identified himself as a U.S. attorney and explained that this meant he was a lawyer employed by the U.S. government. He went on to indicate that citizens who were the victims of searches they felt were unjustified sometimes asked the United States to sue on their behalf and that the government reviewed such cases and sometimes agreed to do so. The judge's instructions began with a reference to the case as a suit by the United States government on behalf of the plaintiff. Finally, the case caption on the award form used by jurors referred to the case as a suit by the United States government on behalf of Mr. James Duncan.Google Scholar

36. The only instance of a statistically significant effect observed for the manipulation of either plaintiff or defendant was obtained when we examined a third dependent variable: jurors' ratings on a ten-point scale asking them to indicate whether they believed that the plaintiff should be awarded “minimum damages” or “maximum damages.” Responses to this item produced no effect for the city liability manipulation but did produce a significant effect for the substitution of the U.S. government as plaintiff. Interpreting this result is difficult. It is possible that this more truncated scale might produce a more normal distribution than one ranging from 0 to 50,000, but inspection of the variables does not suggest that it is distributed substantially differently from the dollar awards themselves. Moreover, since real jurors deal with dollars rather than ordinal scales, we believe that the former are better indicators of how jurors might behave in real cases.Google Scholar

37. For the U.S. attorney manipulation, we believe the materials do provide an adequate test of the possible effect of the cognitive version, but our measures for attractiveness are weak; we have no evidence on the potential effect of different attorney behavior.Google Scholar

38. The judicial instructions included an admonition, drawn from trial transcripts, not to consider the guilt or innocence of the suspect when deciding on damages. Inspection of the tables suggests that jurors typically gave lower awards in the guilty condition and higher awards in the neutral and innocent conditions.Google Scholar

39. For a more detailed discussion of the possible reasons for this pattern of lower awards in the guilty condition and higher and similar awards in the neutral and innocent conditions, see Casper, Benedict, & Perry (cited in note 6).Google Scholar

40. When we analyzed the policy manipulations using dummy variables that compare all U.S. attorney cases to private attorney cases and all city liability cases to the no city liability condition, we observed significant effects for outcome information on the size of compensatory awards and the rate and size of punitive damage awards.Google Scholar

41. It appears that the effects for outcome knowledge are not produced by a simple biasing process in which jurors in cases with guilty plaintiffs choose not to reward wrongdoers. Rather, knowledge of outcome affects interpretation of testimony, with those viewing the guilty version recalling the testimony in a fashion more favorable to police and those viewing the innocent version remembering it as being more favorable to the plaintiff. See Casper, Benedict, & Perry (cited in note 6) for a discussion of the process by which outcome knowledge appears to affect juror awards.Google Scholar

42. If we look within the policy manipulations, we see more variation. Under the situation most closely approximating current rules (regular attorney/no city liability), the effect described above occurs most markedly. In cases in which the city is a defendant, we see an increase in the incidence of awards for both guilty and innocent plaintiffs. For the US. Attorney manipulation, the effects are somewhat different, for the rate rises only marginally for guilty suspects and drops for those who are innocent. The most general pattern, though, does seem to suggest that masking outcome information might have the effect of increasing the number of punitive damage awards.Google Scholar

43. In the regular attorney/no city liability condition, we see greater gains for guilty plaintiffs than losses for innocent plaintiffs, while in the case with city liability we see substantial increases for guilty plaintiffs with little effect on innocent ones. Again, for the U.S. Attorney manipulation, we see substantial losses to innocent plaintiffs.Google Scholar

44. It is also worth noting that the rate of damage suits by guilty and innocent suspects might itself be affected by a change in the rules governing availability of outcome information. The very low rate of success by guilty plaintiffs may itself discourage plaintiffs from filing suit or attorneys from taking such cases, particularly on contingent fee arrangements. If our data were generalizable co the world of jury verdicts, masking outcome knowledge might increase the rate of success for guilty plaintiffs, thus potentially increasing the number of such suits.Google Scholar

45. See Thompson, W. C., Fong, G. T., & Rosenhan, D. L., Inadmissible Evidence and Juror Verdicts, 40 J. Personality & SOC. Psychology 453 (1981);Caretta, T. R. & Moreland, R. L., The Direct and Indirect Effects of Inadmissible Evidence, 13 J. Applied SOC. Psychology 291 (1983);Carroll, J. S., Kerr, N. L., Alfini, J. J., Weaver, F. M., MacCoun, R. J., & Feldman, V., Free Press and Fair Trial: The Role of Behavioral Research, 10 Law & Human Behav. 187 (1986).Google Scholar