Constitutional Culpability: Questioning the New Exclusionary Rules

Andrew Guthrie Ferguson

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

June 13, 2013

66 Fla. L. Rev. 623 (2014)

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.

Number of Pages in PDF File: 62

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

Open PDF in Browser Download This Paper

Date posted: June 15, 2013 ; Last revised: August 27, 2014

Suggested Citation

Ferguson, Andrew Guthrie, Constitutional Culpability: Questioning the New Exclusionary Rules (June 13, 2013). 66 Fla. L. Rev. 623 (2014). Available at SSRN: https://ssrn.com/abstract=2279129

Contact Information

Andrew Guthrie Ferguson (Contact Author)
University of the District of Columbia - David A. Clarke School of Law ( email )
4200 Connecticut Ave. NW
Washington, DC 20008
United States
Feedback to SSRN

Paper statistics
Abstract Views: 862
Downloads: 137
Download Rank: 167,273