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Saturday, January 31, 2009
Courts - "Justices Step Closer to Repeal of Evidence Ruling"
From the front-page of this morning's NY Times, a long story by Adam Liptak. Some quotes:
This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.Access earlier ILB entry on Herring from Jan. 15th here.The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision. * * *
The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.
The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.
Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.
In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”
The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.
But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”
A broad reading of the decision by the lower courts, Professor [Craig M. Bradley, a law professor at Indiana University] said, means “the death of the exclusionary rule as a practical matter.”
Posted by Marcia Oddi on January 31, 2009 02:03 PM
Posted to Courts in general