I Consent

BLOG STAGE THREE
Is the Supreme Court About to Kill Off the Exclusionary Rule?

Adam Cohen writing an Editorial for The New York Times on February 16, 2009 exposes the recent efforts by the Supreme Court to undo a controversial law that has endured for nearly five decades. He is addressing the general public and for those unfamiliar with the rule, he gives an abbreviated history and the court cases it has affected since its inception in 1914.
This is how Wikipedia summarizes it:

“The exclusionary rule is designed to provide a remedy and disincentive, short of criminal prosecution, in response to prosecutors and police who illegally gather evidence in violation of the Fourth and Fifth Amendments in the Bill of Rights, by conducts unreasonable searches and seizure or compelled self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel”

Mr. Cohen presents arguments from both sides of the debate, but he is obviously in favor of keeping the rule intact. Critics argue that the rule allows criminals to go free based on technicalities, which was predicted when the rule was adopted as a national standard in 1962. But it has also changed the incentives for the police, he says, “it gave them less reason to enter a home or tap a phone without a warrant”.

Cohen’s concern stems from last month’s Court ruling on Herring v. United States, in which information used to conduct a search was later discovered to be incorrect due to a negligent error in a police’s database, but it was allowed anyway In this case, Mr. Cohen says, writing for the majority, Chief Justice Roberts declared that…. Evidence need not necessarily be disqualified if it was illegally obtained because of errors in police databases. Isolated mistakes of this sort are not among the exclusionary rule’s core concerns…. Mr. Cohen agrees with the dissenting Justice Ruth Ginsburg, who wrote…. In the modern age database errors can lead to many people’s rights being denied. The harm to a citizen who is arrested and searched on the street because a bureaucrat has made a computer error is just the sort of invasion the founders worried about when they drafted the Fourth Amendment.

Mr. Cohen reminds us what the Supreme Court said back in 1961: “nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence”.

Adam Cohen’s editorial must not be ignored. People must not forget that the US is still a Government of Laws not of Men.

Link to original editorial http://www.nytimes.com/2009/02/16/opinion/16mon4.html?_r=1