Legal News

Defendants? Ability to Suppress Evidence Taking a Hit

By Amir Efrati

Chief Justice John Roberts, July 13, 2006. (AP Photo/Nick Ut)

A longstanding part of U.S. law, known as the exclusionary rule, is getting bruised. The rule requires courts to exclude — or throw out — some evidence seized by law enforcement through illegal searches.

But a ruling last month by the Supremes allowed the prosecution of an Alabama man on drug-possession and gun-possession charges despite the fact that the contraband was found through an illegal search. The 5-to-4 decision in Herring v U.S. is being hailed as perhaps the start of the fulfillment of a longtime conservative dream.

One of those conservative dreamers is Chief Justice John Roberts (pictured), according to a NYT article this weekend by Adam Liptak, who noted that in 1983 Roberts, then a Reagan White House lawyer, wrote a memo on amending or abolishing the exclusionary rule. In last month’s Scotus decision, Roberts said throwing out evidence because of wrongful searches and arrests “is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free.”

A WSJ story last week by Amir Efrati (that’s me) weighed in on the argument by some judges and lawyers that getting rid of the exclusionary rule might lessen the incentive for police officers to lie about how evidence was seized.

The rule has existed since the early 20th century but only applied to federal courts until a 1961 Scotus decision, Mapp v Ohio, applied it to state courts, where most prosecutions take place.

Some researchers say that’s when “testilying” — perjury by police — took off and more officers began making up stories as to why they had probable cause to search defendants and seize contraband. Cutting the exclusionary rule could reduce the pressure on officers to lie, they say.

Civil liberties advocates shudder at the thought. “We’d risk far greater invasions of privacy because officers would have carte blanche to do outrageous activity and act on hunches all the time,” says JaneAnne Murray, a criminal defense lawyer in New York.

Full post as published by Law Blog - WSJ.com on February 02, 2009 (boomark / email).