Supreme Court Steps Closer to Repeal of Evidence Ruling
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.
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.
To be fair, i think that on the facts of the case itself, the ruling can be justified. But this decision is a chip on the armor of the Fourth Amendment. Ultimately the policy can simply be put as whether we should be more or less protective of defendant’s rights. And i tend to fall on the side that personal liberty should be given the greatest respect. The difficulty here is that on the facts, i actually tend to agree with the majority’s reasoning that carelessness itself should not automatically invoke the exclusionary rule. This is one of those cases where as a matter of policy, i agree with the dissenting position, especially as laid out by Justice Ginsberg, but on the facts, i accept that the majority’s reasoning is justifiable.
