Magazine article New York Times Upfront

Supreme Decisions: Criminal Evidence, Voting Rights, and Presidential Authority: Three Critical Issues on the Supreme Court's Docket This Term

Magazine article New York Times Upfront

Supreme Decisions: Criminal Evidence, Voting Rights, and Presidential Authority: Three Critical Issues on the Supreme Court's Docket This Term

Article excerpt



EVIDENCE FOUND as a result of police error, such as an unjustified search during a traffic stop, is now admissable in some cases, the Court ruled.

When Bennie D. Herring went to an Alabama police station to collect some things from his impounded truck in July 2004, a cop recognized him and started calling around to see if there were any outstanding warrants for his arrest. A neighboring police department said there was indeed a warrant, so the officers set off in pursuit of Herring.

The police pulled him over, arrested him, and then found both methamphetamines and a gun. It was soon discovered, however, that the arrest warrant had been revoked, but the computer database had not been updated.

The resulting case, Herring v. United States, focused on whether evidence obtained through police error can be used in court. It was the most important criminal-procedure case before the Supreme Court this year, and in January, the Court ruled that such evidence is, in fact, admissible.

The 5-to-4 decision substantially narrows the so-called "exclusionary rule," which since 1961 had required the suppression of all evidence obtained through police misconduct or error, regardless of intent.

Chief Justice John G. Roberts Jr., writing for the majority, said that the exclusion of evidence should be a last resort and that judges should use a sliding scale in deciding whether particular misconduct by the police warranted suppressing the evidence they had found. (This is the approach used in places like Canada, Australia, and the European Union.)

"To trigger the exclusionary rule," Roberts wrote, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

That price, the Chief Justice wrote, "is, of course, letting guilty and possibly dangerous defendants go free."

Justice Ruth Bader Ginsburg, writing for the dissent, argued that the exclusionary rule protects defendants' rights and prevents judicial complicity in "official lawlessness."

The ruling could have broad consequences, says Craig M. Bradley, a law professor at Indiana University. "It may well be," he says, "that courts will take this as a green light to ignore police negligence all over the place."



BEFORE THE VOTING RIGHTS ACT, many blacks in the South, like this woman in Baton Rouge, La., in 1964, were forced to take literacy tests before being allowed to register to vote.

Is a measure designed to protect against discrimination at the polls still relevant? That's the question the Supreme Court is considering in a case that seeks to end a central provision of the Voting Rights Act of 1965.

The Court will determine whether nine states (and additional localities in seven other states) with a history of discrimination against blacks and other minorities will still need to get permission, or "pre-clearance" from the federal government before making any changes that affect voting.

The plaintiff in the case, a Texas municipal utility district, argues that the requirement is no longer necessary after more than four decades of progress toward racial equality that culminated in the 2008 election of the nation's first black President.

The Court's decision in the case, Northwest Austin Municipal Utility District Number One v. Mukasey, may have significant consequences for elections in 16 states.

"This could be the biggest election-law case on the Court's docket since Bush v. Gore," says Richard L. Hasen, a professor at Loyola Law School in Los Angeles, referring to the ruling that effectively decided the outcome of the 2000 election between AI Gore and George W. Bush.

The pre-clearance requirement applies to nine states--Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia--and to scores of counties and municipalities in other states that Congress found had a history of discrimination at the polls. …

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