William & Mary Bill of Rights Journal
Abstract
Part I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that the solution is to require judges to “redline” the challenged affidavit and appended it to the final judicial opinion. Part V addresses the potential critiques of this course of action, none of which this Note finds entirely convincing. Ultimately, this Note asserts that appending a corrected affidavit is a small price to pay for clarity.
Repository Citation
Diana Bibb, Frankly, It's a Mess: Requiring Courts to Transparently "Redline" Affidavits in the Face of Franks Challenges, 29 Wm. & Mary Bill Rts. J. 825 (2021), https://scholarship.law.wm.edu/wmborj/vol29/iss3/8Included in
Criminal Procedure Commons, Fourth Amendment Commons, Law Enforcement and Corrections Commons