Monday, February 2, 2009

Re-Thinking the Exclusionary Rule

Over the weekend, the Adam Liptak of the NYT had an interesting take on the Roberts Court and how, based on its decision in Herring last month (which I wrote about here), it might be edging towards "repealing" Mapp v. Ohio (1966) and the exclusionary rule itself.

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.
As noted criminologist Samuel Walker has written, less than 1% of criminal cases are tossed out on "legal technicalities," yet the belief that we are "letting guilty and possibly dangerous defendants go free," as the Chief Justice wrote in his Herring opinion, is still prevalent.

And this leads to the rhetorical jump that the police have therefore professionalized to the point where strict evidentiary rules are no longer needed (Liptak writes Scalia misrepresents Walker's work on this). As Walker makes clear, the fact that Mapp was the driving force behind professionalizing policing seems lost on those who wish to scrap it.

But the court's close 5-4 vote in Herring shows the importance of the next few Supreme Court appointments, a point illustrated in this Liptak piece from yesterday. No matter how you slice it, we are very close to reinterpreting the exclusionary rule, and the 4th amendment generally, as it relates to policing in the U.S.

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