The majority opinion in Arizona v. Evans decision is misguided. When Rehniquist differentiates between “police misconduct” and “mistakes by court employees,” he draws an artificial line when the Fourth Amendment makes no such distinction. The creation of a “categorical exception to the exclusionary rule for clerical errors of court employees” is nothing short of a vacuous judicial double standard: the search should be Constitutionally legal or illegal irrespective of the particular governmental actor that committed the error.
That is not to say, however, that Arizona v. Evans was necessarily decided wrongly. Rather, Justice O’Connor’s concurrence raises what should be the relevant question: whether reliance on faulty computer record keeping is reasonable and protected under the “good faith exception” to the exclusionary rule.
Why might the Evans case fall under the good faith exception? As the evidence highlights, this is the type of rare clerical error that occurs only “once every three or four years.” Intuitively, it seems reasonable that officers can rely on that high level of database accuracy and precision when performing their police work; false arrests are so rare in this case as to render them effectively null. Thus the evidence maybe should not be excluded, as the good faith would override the exclusionary rule.
The problem with Evans is that it does not address how far courts should go in excusing computer and clerical errors for exclusionary rule purposes and does not create a test for the reasonable expectation of accuracy in police records. Such a distinction is imperative: as Justice O’Connor highlights, even if we permit the search in the Evans case, there are certainly cases where it “would not be reasonable” for the police to rely “on a recordkeeping system… that routinely leads to false arrests.” Consequently, because no record keeping system is perfect, as we rely more and more on digital databases it is crucial that we create a judicial standard that determines whether or not relying on their accuracy is reasonable.
There's no reason why courts could not create such a judicial standard and we could even call this standard an "expectation of accuracy" standard.
Any “expectation of accuracy” standard would need to be a compromise between competing interests. While applying the exclusionary rule too freely allows guilty people to get away free, applying it too strictly would allow for no expectation of precision in any record keeping system. Where and how do we strike this balance? Any expectation of accuracy standard would need to manage both of these concerns. Such a standard, however, would be beneficial, and it would even respond to Justice Ginsburg’s assertion that there is no “suppl[ied] incentive to the State to prompt updating of computer records” by creating such an incentive.
An “accuracy standard” would help us to reconcile our increasing use of databases and archives in the digital world and determine how far courts should go in excusing computer and clerical rules under the exclusionary rule.
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Is the good faith exception for clerical errors really a vacuous double standard? The Court provides a reasoned justification. The exclusionary rule prohibits the introduction of probative evidence at trial, thereby imposing a significant cost to society (since guilty people escape punishment for crimes). The justification for doing this is that it provides incentives for police to behave in accordance with the Fourth Amendment (since if they violate it, then the evidence they turn up is worthless). The Court reasons that judicial clerks don't care whether a certain piece of evidence is admissible, and therefore excluding evidence wouldn't incentivize them to be more careful about errors. This seems at least logical. You might disagree, though, with the underlying assumption about whether excluding evidence would in fact deter clerical errors. Or you might argue that the exclusionary rule is not just about deterrence. (What other functions might it serve? Does the Fourth Amendment require an exclusionary rule? Or is it just a Court-made prophylactic to ensure that law enforcement officers comply with the Fourth Amendment?).
ReplyDeleteI like your idea that courts ought to impose an expectation of accuracy standard on police use of databases. It might be easier to frame this standard as a PROCESS standard rather than and OUTCOME standard. That is, the question would be "did the government take sufficient precautions to ensure accuracy?" rather than something like "is the database accurate more than 90% of the time?".