Constitutional Culpability: Questioning the New Exclusionary Rules

62 Pages Posted: 15 Jun 2013 Last revised: 27 Aug 2014

See all articles by Andrew Guthrie Ferguson

Andrew Guthrie Ferguson

American University Washington College of Law; University of the District of Columbia - David A. Clarke School of Law

Date Written: June 13, 2013


This article addresses the questions left unanswered by the Supreme Court’s recent exclusionary rule cases. The Hudson-Herring-Davis trilogy presents a new and largely unexamined doctrinal landscape for Fourth Amendment suppression hearings. Courts, litigators, and scholars are only now assessing what has changed on the ground in trial practice.

Once an automatic remedy for any constitutional violation, the exclusionary rule, now necessitates a separate and more searching analysis. Rights and remedies have been decoupled, such that a clear Fourth Amendment constitutional violation may not lead to the exclusion of evidence. Instead, it now leads to an examination of the conduct of the law enforcement officer – conduct that if not sufficiently “culpable” does not require exclusion. This is new territory for lawyers and courts used to an automatic linkage between constitutional wrongs and constitutional remedies. It is an unexplored reality that requires new tactical choices and an understanding of the consequences of the Supreme Court’s new standard for exclusion.

This article approaches the Roberts Court’s exclusionary rule reasoning on its own terms. It questions the doctrinal moves of the Supreme Court focused on “culpability” and raises questions about its implication for trial practice. It then offers several suggested responses for defense counsel and prosecutors approaching this new reality.

Keywords: Exclusionary rule, Fourth Amendment, criminal procedure, suppression, Herring, Davis, Hudson, trial

Suggested Citation

Ferguson, Andrew Guthrie, Constitutional Culpability: Questioning the New Exclusionary Rules (June 13, 2013). 66 Fla. L. Rev. 623 (2014), Available at SSRN:

Andrew Guthrie Ferguson (Contact Author)

American University Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

University of the District of Columbia - David A. Clarke School of Law ( email )

4200 Connecticut Ave. NW
Washington, DC 20008
United States

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