Academic journal article The Journal of High Technology Law

Herring V. United States: Are Errors in Government Databases Preventing Defendants from Receiving Fair Trials?

Academic journal article The Journal of High Technology Law

Herring V. United States: Are Errors in Government Databases Preventing Defendants from Receiving Fair Trials?

Article excerpt

Cite as 11 J. High Tech. L. 129 (2010)

I. Introduction

In 1791, the framers of our Bill of Rights could not have foreseen the technological advancements that came about during the modern age. (1) As Justice Brandeis put it "this [C]ourt has repeatedly sustained the exercise of power by Congress, under various clauses of [the Constitution], over objects of which the fathers could not have dreamed." (2) Marvel and invention have redefined law enforcement in both the field and in the courtroom. (3) In response, the judiciary has been forced to balance the rights of the accused with those of law enforcement. (4) The ever-changing technology used by police and prosecutors has made it difficult to establish bright line rules regarding evidence obtained through the use of technology. (5) Thus the legal landscape surrounding technology and the Fourth Amendment is also everchanging. (6)

In the modern age, where law enforcement is dependent on computers, the accuracy of government databases may determine whether a defendant gets a fair trial. Technology has played a major role in the area of Fourth Amendment search and seizure law through its use in law enforcement and the determination of probable cause. (7) In 1961, Mapp v. Ohio applied the exclusionary rule to all federal and state criminal proceedings; suppressing evidence at trial that was obtained through a Fourth Amendment violation. (8) However, since Mapp, the Supreme Court has limited the application of the exclusionary rule. (9) When probable cause for an arrest is founded on errors in government databases, the Supreme Court has allowed evidence obtained from that search into trial. (10) As a result, individuals are having evidence seized in violation of the Fourth Amendment used against them at trial.

The recent decision of Herring v. United States even further restricts the application of the exclusionary rule where errors in government databases form the basis for a search. (11) Under Herring, errors in government databases have the potential to infringe on an individual's right against unreasonable search and seizures. (12) The result is unfair: the accused is faced with illegally seized evidence and the government receives no penalty for keeping incorrect records. As policing becomes more reliant on computerized systems, the number of illegal arrests and searches based on errors in government record-keeping is poised to multiply.

II. History

A. The Exclusionary Rule and Early Technology

In 1914, the Supreme Court unanimously ruled that evidence seized in violation of the Fourth Amendment must be excluded from evidence in federal criminal prosecutions. (13) This remedy, known as the exclusionary rule, provides a disincentive to police officers and prosecutors who illegally gather evidence in violation of the Fourth Amendment. (14) The Weeks Court recognized that unless a remedy was available to those who have had their rights violated, the Fourth Amendment protections would mean nothing:

   The Fourth Amendment was
   intended to secure the citizen in
   person and property against unlawful
   invasion of the sanctity of his home
   by officers of the law acting under
   legislative or judicial sanction. This
   protection is equally extended to the
   action of the Government and officers
   of the law acting under it. To
   sanction such proceedings would be
   to affirm by judicial decision a
   manifest neglect, if not an open
   defiance, of the prohibitions of the
   Constitution, intended for the
   protection of the people against such
   unauthorized action. (15)

While the Weeks decision significantly changed criminal procedure and increased the protections under the Fourth Amendment, its holding did not extend to state criminal proceedings. (16) This limitation lasted four decades, until a change in court membership brought with it a change in judicial philosophy. …

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