Citations to This Work

  • Andrew Guthrie Ferguson, Predictive Prosecution, 51 Wake Forest L. Rev. 705 (2016)


Since its inception, the exclusionary rule has been aimed at deterring misconduct by police officers and law enforcement agents. It is widely believed to deter deliberate, reckless, grossly, or systemic negligent conduct by law enforcement agents. Increased reliance by law enforcement agencies and their agents on expansive, interconnected information suggests that the exclusionary rule needs to be expanded beyond just the acts of the officers and agents and be applied to the agency itself where there is evidence that poor data quality standards produced the reckless or negligent conduct. When so much of our liberty rests on the quality of the data in these databases and watch lists, it is irresponsible to allow such systems to be exempt from legislatively mandated data quality standards. The government must endure the sanction imposed upon it under the exclusionary rule – for it is a constraint on the power of the government, not just some of its agents, to preserve the fundamental protection under the Fourth Amendment to be secure in our persons, homes, papers, and effects. This paper explores the current framework within which data quality of criminal records and national security watch lists are maintained and how extending the exclusionary rule to the underlying systems of information on which the law enforcement agencies and their agents so heavily rely can increase the data quality of these systems.