The Supreme Court's Latest "Exclusionary Rule" Decision: Why Justice Kennedy, the Swing Vote, Was on the Liberal Side Here, But the Conservative Side in a Prior Decision Regarding the Rule
	By VIKRAM DAVID AMAR
	Friday, April 10, 2009

Last Monday, the U.S. Supreme Court decided a case, Corley v. United States, that involves the “exclusionary rule”  -- the label lawyers give to the idea that evidence obtained improperly by the police should not be used during a criminal trial, even if it is highly relevant to the question of guilt.  In Corley, the Court, by a 5-4 vote, held that when federal police don’t bring an arrested suspect before a magistrate judge (a process known as “presentment”) within six hours of the arrest, and don’t have an excuse for that delay, confessions made by the defendant after that six-hour time limit has run should be excluded from being admitted as evidence during the suspect’s trial.  In other words, in Corley the Court preserved the exclusionary rule for confessions obtained after unreasonable delay in presentment, at least in cases where the confessions were made more than six hours after the arrest.

Corley offers an interesting contrast to another exclusionary rule case the Court handed down a few months ago, Herring v. United States. (For more background on Herring, readers may want to consult a column I wrote previewing the case last fall.) In Herring, the Court, also by a 5-4 vote, decided not to apply the exclusionary rule to evidence obtained in a police search conducted after an arrest that the police, it turns out, had no right to make in the first place. (The arrest warrant the police relied on had been recalled, but all the records had not yet been updated, so the police were under the mistaken impression that the warrant was still in effect.) Reasoning that the police officers' mistake in effecting the arrest and search of the defendant was not made intentionally or recklessly, and that little in the way of deterrence would thus be gained by excluding the relevant evidence found in the search, the Court used its discretion to reject, rather than embrace, the exclusionary-rule remedy in that case.

Justice Kennedy was the only Justice voting with (and, indeed, accounting for) the majority in both rulings. In Herring, he sided with the part of the Court usually characterized as more "conservative" (Justices Thomas, Scalia, Alito and Chief Justice Roberts). In contrast, in Corley, Justice Kennedy joined the more "liberal" or "moderate" (depending on one's point of view) wing of the Court (Justices Souter, Stevens, Ginsburg and Breyer).

What Lessons Do Corley and Herring Teach?

One reality that emerges from these cases is that the conservative members of the Court – the dissenters in Corley – really dislike the exclusionary rule; they try hard to avoid excluding probative evidence of guilt that was not obtained as a result of coercion. I say this because the legal case, under existing precedents, made by the majority in Corley for applying the exclusionary rule was pretty strong, yet the conservative Justices still rejected it. Prolonged and secret interrogations of arrestees, conducted for days before a magistrate judge is brought into the process, can easily lead to abuse. As the Corley Court observed, "[n]o one with any [knowledge] of the history of 20th-century dictatorships needs a lecture on the subject." Moreover, absent the exclusionary rule, there would seem no obvious incentive for federal police to comply with the requirement of prompt presentment to a magistrate judge.

Perhaps most importantly, Congress seemed to have ratified the practice of applying the exclusionary rule to federal violations of the presentment requirement. Prior to 1968, the Supreme Court had required the exclusion of every confession – including voluntary confessions -- obtained after federal police failed to promptly bring an arrestee before a magistrate, even when the confession had been obtained within the first six hours of arrest. That year, however, Congress passed a law that, read in its most coherent way, seemed to cut back on the exclusionary rule the Court had been applying in such a way as to allow more confessions to be admitted into evidence, but only confessions given during the first six hours.

Although the statutory language Congress used was no model of clarity, the Corley majority's arguments about the most sensible way to read all of Congress' words together were more forceful than the dissent's. On top of that, the majority had a lot of legislative history on its side strongly suggesting that Congress intended to modify, rather than eliminate, the exclusionary rule in these kinds of cases. So the dissenters' insistence on eliminating the exclusionary rule altogether for voluntary confessions – no matter how long the delay in presentment -- is best understood in terms of their general abhorrence of the exclusionary remedy itself.

What of Justice Kennedy? Is He Deferring to Congress?

So much for the Corley dissenters. What about Justice Kennedy? He, after all, is the swing vote accounting for the exclusionary rule's application in Corley and its rejection in Herring. What lessons about his perspective can we learn from laying the two cases side by side?

One possible way to explain Justice Kennedy's votes in the two cases is to focus upon the fact that Congress had weighed in to preserve (at least in part) the exclusionary rule in Corley, whereas in Herring the Court was examining the exclusionary rule solely in the context of the Constitution, without any statutory dimension to consider. Under this theory, Justice Kennedy might be hostile to the exclusionary rule generally, but might also want to defer to Congress' wishes.

This explanation may be at best incomplete, however, because Justice Kennedy has often displayed little deference to Congressional laws that are themselves reactions to earlier Supreme Court rulings. Recall that the 1968 Congressional statute clearly was enacted to respond to earlier Supreme Court cases applying the exclusionary rule expansively; the only question is whether Congress modified or completely overruled those exclusionary rule decisions. In past opinions (some of which the Corley majority cited to), Justice Kennedy has indicated a disinclination to allow Congress to second-guess the high Court's decisions, certainly as to constitutional interpretation and perhaps also as to other important judicial functions such as supervising the federal criminal justice system (a function that had provided the rationale on which the Supreme Court had relied, before 1968, in applying the exclusionary rule to all unnecessary delays in presentment).

So maybe Justice Kennedy isn't inclined to defer to Congress here after all. To the contrary, maybe he simply is reading Congress' law narrowly, rather than broadly. If Congress' statute can be read to either modify or entirely overrule the old Supreme Court cases, then Justice Kennedy's court-protective mindset might incline him to read Congress as having merely revised – not obliterated – the Court's precedents. If that means preserving some form of the exclusionary rule (a rule about which Justice Kennedy may otherwise have his qualms), then that is simply the price to pay to reaffirm the idea that Congress' attempts to undo past Court rulings should be interpreted narrowly and skeptically.

Using the Exclusionary Rule in a Nuanced Way, to Deter Abuse and Promote Compliance With the Rules

A final (and perhaps forceful) explanation for Justice Kennedy's votes is that he simply believes the exclusionary rule accomplishes more deterrence in Corley than in Herring. Remember, the mistake by the police in arresting and searching Mr. Herring in reliance on faulty record-keeping was unintentional and non-reckless. In contrast, a decision not to bring an arrestee before a magistrate judge for more than six hours, when magistrates are nearby and available, seems much more calculating and subject to abuse. As the Corley majority noted, without the exclusionary rule, the requirement of prompt presentment before a magistrate would be left "without any teeth." The Court went on: "[I]n a world without [the exclusionary rule], federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to."

Thus, here, as elsewhere, Justice Kennedy may simply be engaging in a nuanced, fact-specific, application of a legal rule so as to do justice to the particular parties and the interests involved.  

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher..