Publication Date

3-1-2022

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Fourth Amendment, Warrants, Oath, Evidence, Originalism, Legal History, Criminal Procedure, Criminal Law, Police Reform

Abstract

The Fourth Amendment requires that warrants be supported by “Oath or affirmation.” Under current doctrine, a police officer may swear the oath to obtain a warrant merely by repeating the account of an informant. This Article shows, however, that the Fourth Amendment, as originally understood, required that the real accuser with personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts and most state courts from 1850 to 1960 held that the oath, by its very nature, required a witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v. United States that a warrant could rely upon hearsay. Jones radically altered criminal investigations. But the decision rested entirely on policy preferences, ignoring text, original meaning, and rich contrary precedent.

This Article argues that we should return to the original understanding that the oath requirement bans thirdhand accounts. Remarkably, this is the first comprehensive study to consider whether the oath requires personal knowledge.

Copyright Statement / License for Reuse

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.

Rights Holder

Laurent Sacharoff

Provenance

Received from author

File Format

application/pdf

Language

English (eng)

Extent

84 pgs

File Size

598 KB

Publication Statement

Reprinted with permission from the Stanford Law Review at 74 Stan. L. Rev. 603 (2022). For information visit: stanfordlawreview.org.

Publication Title

Stanford Law Review

First Page

603

Last Page

686

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