Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

01/14/2009 (12:08 pm)

Exclusionary Rule Reversed (Updated: No, It Wasn't)

The US Supreme Court ruled this morning that evidence obtained improperly due to an error in police records may be used in the prosecution of a criminal suspect, and need not be excluded. This is great news.

I wrote back in July that the Supreme Court would be hearing a case in October, and that it looked as though the Exclusionary Rule would be reversed. The exclusionary rule is the one that says evidence obtained in violation of constitutional procedure must be excluded from trial, and any evidence obtained as a result of evidence obtained that way must also be excluded. The US is the only nation in the free world that uses the courts to enforce a rule like this; most other nations use laws that permit the court to evaluate the seriousness of the violation of rights, and balance that against the seriousness of the crime in question.

Without reading the decision, it’s hard to say exactly how drastically the rule has been changed. I’m sure the decision will be posted within the next 48 hours or so, and I’ll explain further then. In the meantime, the only clue I’ve seen is this brief comment from the New York Times:

… Chief Justice John Roberts, writing for the court, said the evidence may be used ”when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.”

The vote from the Court was along ideological lines. Roberts wrote the decision, supported by Alito, Scalia, Thomas, and Kennedy. Ginsberg wrote a dissent, joined by Breyer, Souter, and Stephens.

For the time being, the Court remains the only major organ of government from which we can expect even occasionally to hear good sense. Ginsberg and Stephens will most likely be resigning in the next year or two, undoubtedly to be replaced by hard liberals like themselves. The long-term mix of the Court will be determined by who’s President, and who’s in Congress, when the next conservative jurist resigns.

UPDATED 1/17/09: After reading the decision, it’s clear that the Court simply applied and extended an existing “good faith” rule. The “good faith” rule makes it unnecessary to exclude evidence when it’s clear that the police acted on “objectively reasonable reliance” that a warrant was sound, and the clerical error that rendered the warrant invalid was not part of a widespread pattern of negligence or recklessness. The Exclusionary Rule survives to ruin another day, but at least the Court ruled reasonably today.

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