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Is the Exclusionary Rule Dead?

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No, says Indiana University law professor Craig Bradley in an article in the current issue of the Journal of Criminal Law and Criminology.

This Article reviews Hudson, Herring, and Davis, as well as the court of appeals cases that have applied Herring. It suggests that the Supreme Court has not eliminated the exclusionary rule and argues that the rule should still be applied in cases of "substantial" as opposed to "simple isolated" negligence--that is, when negligence has substantially interfered with a suspect's privacy rights, such as through an illegal arrest or an illegal search of his car or house. It notes that none of the three cases decided by the Court involved such a substantial intrusion. It concludes, through a careful reading of the three cases, as well as examination of successful defense appeals in the courts of appeals, that the exclusionary rule, though limited, is neither dead nor unacceptably constrained.

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