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Red Herring or the Death of the Exclusionary Rule?

6 Pages Posted: 26 Mar 2009 Last revised: 1 Jul 2013

Craig Bradley

Indiana University Maurer School of Law


This article discusses Herring v. United States in which the Court held, 5-4, that evidence found after the defendant was arrested due to faulty information provided by a police from another county would not be excluded. The holding was narrow: "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule should not apply." However, the opinion contains much language suggesting that the Court is prepared to abandon the rule, which has been the foundation of criminal procedure since 1961. This article discusses just what Herring held, and what its implications may be.

Keywords: Criminal Procedure, Fourth Amendment, Exclusionary Rule

Suggested Citation

Bradley, Craig, Red Herring or the Death of the Exclusionary Rule?. Trial Magazine, April 2009; Indiana Legal Studies Research Paper No. 129. Available at SSRN:

Craig Bradley (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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