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High Court Says Evidence Valid Despite Error

Publication Date: 
January 14, 2009
National Public Radio
Nina Totenberg

NPR's All Things Considered interviews Professor Pamela S. Karlan, who represented the defendant, regarding the Supreme Court's decision in Herring v. United States:

NINA TOTENBERG: Nearly a century ago, the Supreme Court created a rule that excludes from trial evidence that is illegally obtained. The so-called exclusionary rule was created to ensure that there was no premium for police in violating an individual's constitutional right to be safe from unreasonable searches. Thus, in most instances if police conduct an illegal search, the evidence obtained cannot be used for a prosecution.

Critics of the rule have long lamented that because the constable errs, the criminal goes free, and three years ago the Supreme Court's four most conservative justices said they were willing to get rid of the exclusionary rule. The four, however, were one vote shy of a majority. So today there was a five-justice majority for a more modest approach undercutting one aspect of the exclusionary rule. For the first time, the Court said that when police record-keeping is erroneous, the evidence may still be used to prosecute.


PAM KARLAN: The handwriting on the wall for the future is the Supreme Court is not very committed to the exclusionary rule, and when it can find ways of getting around the exclusionary rule, there seemed to be five justices who are prepared to give the rule lip service and then whittle it down to a doorstop. And I think that's actually a characteristic, in some ways, an emerging characteristic of the Roberts court is there are a lot of areas where they are not overruling the precedents that are on the books, but they are narrowing them down so that they are, you know, to quote an old Supreme Court case, like "railroad tickets good for this train and this day only."