Legal News

High Court Says No to Wiretapping, Yes to Exclusionary Rule

By Dan Slater

Yesterday, the Supreme Court granted cert in a case that, commentators say, gives them an opporunity to carve out more exceptions to the “exclusionary rule,” a criminal procedure doctrine that excludes evidence obtained from an unlawful search. At the same time, the Court, without comment, turned down an appeal from the ACLU that challenged the Bush administration’s warrantless-wiretapping program.

The exclusionary rule, a 100 year-old doctrine that eliminates evidence obtained as the result of an improper search, could lose some of its force if the Court rules for the government in Herring v. U.S. According to reports, the question in the case is whether
the exceptions should include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police. The Court’s acceptance of a criminal defendant’s appeal usually means it’s inclined to overturn the conviction, notes the NYT. But if the Court, as expected, uses the Herring case to carve out another exception to the exclusionary rule, the appeal — which was prepared by the students of Stanford Law School’s Supreme Court litigation clinic — might turn out to be a case for Herring of “watch out what you wish for.”

In ACLU v. National Security Agency, the ACLU challenged — on behalf of itself, other lawyers and reporters — the administration’s wiretap program of eavesdropping on global telephone calls without a warrant. The plaintiffs allege the program has forced them to alter how they communicate with foreigners who are likely wiretap targets. A federal judge in Detroit largely agreed with the plaintiffs, but the 6th Circuit Court of Appeals dismissed the suit because the plaintiffs couldn’t show they’d been wiretapped unless they had access to information that was protected by government’s “state secrets privilege.”

Full post as published by Law Blog - WSJ.com on February 20, 2008 (boomark / email).