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Bradley on Herring v. United States

By Lawrence Solum

Craig Bradley (Indiana University School of Law-Bloomington) has posted Red Herring or the Death of the Exclusionary Rule?
(Trial Magazine, April 2009) on SSRN. Here is the abstract:

This article discusses Herring v. United States in which the Court held, 5-4, that evidence found after the defendant was arrested due to faulty information provided by a police from another county would not be excluded. The holding was narrow: "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule should not apply." However, the opinion contains much language suggesting that the Court is prepared to abandon the rule, which has been the foundation of criminal procedure since 1961. This article discusses just what Herring held, and what its implications may be.

Full post as published by Legal Theory Blog on March 26, 2009 (boomark / email).