By: Victor M. Hansen The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.
Join the New England Law Review for our fall paper symposium on October 8th at 4:30 p.m. in the Cherry Room at New England Law | Boston. It will showcase Professor Rachel VanLandingham’s article “Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society.” She will discuss why military commanders should be removed from the prosecutorial chain, as this position constitutes an unethical practice of law, and further discuss the collateral consequences of such a removal. She also will consider how problems associated with prosecutorial discretion can be potentially magnified in the military, the unique aspects of commander-owned prosecutorial discretion, and the insufficient checks and balances currently in place. The symposium will feature Professor VanLandingham, a Visiting Scholar from Southwestern Law School, as our keynote speaker, as well as feedback and commentary from a panel of prominent legal voices, including:
- Associate Dean Victor Hansen, New England Law | Boston
- Provost Elizabeth Hillman, UC Hastings College of Law
- Adjunct Professor James Gallagher, Suffolk University Law School