CrimProf Blog

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

Wednesday, May 16, 2018

Durling on The Intercircuit Exclusionary Rule

James Durling (Yale University, Law School, Students) has posted The Intercircuit Exclusionary Rule (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
This Comment will focus on one problem that arises in federal criminal cases — what it will call “intercircuit suppression disputes.” An intercircuit suppression dispute occurs when the federal government prosecutes a case within one circuit, but seeks to introduce evidence acquired in a different circuit. For over thirty years, federal district courts have resolved intercircuit suppression disputes by adopting a location based choice-of-law rule: courts apply the precedent of the circuit where the search occurred. Yet the choice-of-law approach is fundamentally flawed. Both doctrine and theory make clear that federal circuit splits do not present a choice-of-law problem. Instead, federal courts should decide intercircuit suppression cases in the same way they would any other question of law: they should either follow binding vertical precedent or, if there is no binding precedent, they should independently determine the meaning of the law. Admittedly, in intercircuit cases, courts must also account for an officer’s good-faith reliance on the search circuit’s precedent. But this narrow good-faith exception does not change the basic conclusion that the forum court should always decide the question according to forum precedent.

In resolving this narrow doctrinal question, this Comment also makes a broader theoretical contribution to the choice-of-law literature. Courts and scholars have long proceeded on the assumption that circuits splits do not create a choice-of-law question but have failed to provide a general explanation of why they do not. This Comment offers such an account by showing that the presence of separate laws — rather than simply different interpretations of the same law — is necessary for having a choice-of-law problem. And in doing so, this Comment shows that federal courts should never resolve circuit splits by resorting to choice-of-law rules.

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