Justice Ginsburg's Dissent In Herring V. United States

THE DEMISE OF CRIMINAL PROCEDURE

Justice Ginsburg’s dissent in Herring v. United States suggested there is more to the exclusionary rule than just deterring police misconduct.[1] She explained that the rule was an “essential auxiliary” to the Fourth Amendment right, which is owed “a more majestic conception” due to the important purpose of preserving judicial integrity.[2] With this reference to judicial integrity, Justice Ginsburg and three of her colleagues reminded us of the importance of this fundamental principle. This article joins with Justice Ginsburg’s vision to argue for a reinstatement of judicial integrity as the historical basis of the exclusionary rule. The concerns of judicial integrity are reflected in the desire to
Michigan and Herring v. United States have explained that the exclusionary rule is a “massive remedy” to be applied only as a “last resort.”[5] In order to be applied, the rule must overcome a balancing test that weighs the benefit of “some incremental deterrent” to police misconduct against the “substantial social cost” of setting a known criminal free.[6] As applied, the balancing test embodies all the ambiguities and subjectivity of a Rorschach test. Justice Brennan characterized it as rife with “intuition, hunches and occasional pieces of partial and often inconclusive data.”[7] Predictably, the exclusionary rule does not fare well when these imbalanced factors are weighed. Instead, the Court has used the balancing test to repeatedly uphold the introduction of evidence despite constitutional violations, leaving the Fourth Amendment right to protect itself through a set of anachronistic remedies announced over six decades ago in Wolf v. Colorado. Despite the Roberts Court’s assurances that the exclusionary rule can be ignored due to the increasing professionalism of police forces and greater availability of civil rights suits, we will show that the alternative remedies mentioned in Wolf have not progressed as far as the Roberts Court would have us
United States.[9] In Weeks, the Court suppressed evidence that was unlawfully obtained by federal officers and introduced into a federal prosecution. The Court addressed two concerns that were accomplished by suppressing unlawfully seized evidence. First, the remedy would enable courts to fulfill their obligatory duty of giving effect to the Fourth Amendment right.[10] In the unanimous opinion, Justice Day explained that without the remedy of suppression, “the protection of the 4th Amendment… is of no value.”[11] Weeks emphasized the “great principles” of the Constitution and expressed an unwillingness to sacrifice these fundamental rights to aid the conviction of one criminal.[12] The exclusionary rule was thus conceived as a necessary adjunct to the Fourth Amendment right