CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, January 28, 2010

Bradley on Reconceiving the Fourth Amendment and the Exclusionary Rule

Bradley craig Craig Bradley (Indiana University School of Law-Bloomington) has posted Reconceiving the Fourth Amendment and the Exclusionary Rule  (Criminal Law Symposium, Chicago-Kent Law Review, 2010) on SSRN. Here is the abstract:

In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in it's stated holding, suggested that it was only reducing the rule's force in a minor way. This article reconceives the exclusionary rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court's past approach, or it's proposal in Herring, is to exclude evidence only when there is a violation of the Court's Fourth Amendment rules and that violation is "unreasonable" or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the rule while maintaining it as an effective deterrence to police misconduct.

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No one can eliminate a trace of the conservative opposition to the rule. Calling the opposition "conservative" is charitable. Roberts and Alito will walk away from the exclusionary rule as soon as they get the right case. Kennedy will go with them and it will be at least 5-4, they might even get the new Justice who is ex prosecutor.

Posted by: mpb | Jan 30, 2010 3:46:21 AM

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