Procedural Exclusion

To the editors:

While agreeing with the general sentiment, I take issue with the staff editorial about the Supreme Court’s finding in Herring v. U.S. Again, though I agree with the main idea, which is that the court is taking drastic and controversial steps against the exclusionary eule, the manner in which this editorial is presented characterizes the decision as more extreme and far-reaching than it actually is.

First, I disagree with Herring’s depiction as “unprecedented.” In fact, there is notable precedent for clarifying exceptions to the exclusionary eule. Both U.S. v. Leon (1984) and Arizona v. Evans (1995) dealt with exceptions to the exclusionary rule, and in both cases, the holding allowed for these exceptions if law enforcement showed that the mistakes were made in good faith.

Secondly, the hypothetical proposed by the column, that police could “plead ‘negligent’ as a cover-up for violations of individuals’ rights in a variety of circumstances…” is not accurate, according to the finding in Herring. Here, the court allowed the exception to the exclusionary rule because the officers that arrested eefendant Herring did so based on mistakes made by other law-enforcement officers, not the arresting officers themselves. They acted in good faith based on information they received from colleagues, which happened to be incorrect. Here, it would not be fair to argue that an officer could purposely violate a defendant’s rights and plead negligent, as that would violate the good-faith exception to the exclusionary rule.

Finally, the final paragraph of an otherwise balanced, well-written opinion is unnecessarily inflammatory. “The Supreme Court has taken a dangerous decision by allowing evidence obtained illegally to be used in a trial. For a democracy to flourish, no one can be above the law.” By providing exceptions to the exclusionary rule, the court is holding that evidence that fits into this exception is not illegal. The court says nothing of allowing illegal evidence to be presented at trial and instead rules on the existence of exceptions to the exclusionary rule. By writing that police officers are made “above the law” with this decision, you are implying that they committed some sort of crime in the Herring case, or in the cases referenced by Herring. All of the courts ruled on the legality of the procedure followed by law enforcement and never ruled any of their personal behavior illegal.

Washington, DC
January 27, 2009

Josh Akman is a columnist for the George Washington University Hatchet.