Herring v. United States, the Exclusionary Rule, and Errors in Databases

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3 Responses

  1. JP says:

    “If the Court were just restating Evans, why bother taking the case only to affirm a routine application of Evans?”

    Weren’t there four Justices voting to overturn Evans? Do we know who voted to take the case?

    “There must be some kind of penalty or consequence for an error.”

    But why a judicial remedy, and more importantly, why a Fourth Amendment remedy? Shouldn’t that be a political decision? The legislature could create a civil remedy (which seems preferable to me, since it benefits the innocent along with criminals).

    “In Herring, because of the Court’s decision, the police benefited from the error.”

    How? Isn’t it the general public that (in theory) benefits from the imprisonment of criminals?

  2. Thomas Clancy says:

    I think it may be fair to say that, after Herring, we no longer talk in terms of good faith as an exception to the exclusionary rule. Instead, we must analyze police misconduct for negligence, recklessness, and intentional misconduct – and that the exclusionary rule only applies to the latter two. (I add that, perhaps, we must somehow continue to analyze police intent objectively pursuant to Whren).

    I note also that, for the first time in decades, there is a suggestion in the dissent that the exclusionary rule may be constitutionally mandated. Four justices signed onto Ginsburg’s dissent.

  3. Face reality: This court has accepted the invitation, inherent in the flaws and inconsistencies of exclusionary rule case law, to extinguish it incrementally. Tort remedies penalize jurisdictions rather than cops, and civilian review boards are uniformly impotent to abridge police misconduct. In the absence of enforcement alternatives, the Fourth A, not just the Ex Rule, contracts by default and momentum.

    Bill Cuddihy