A New Test for the New Crime Exception

The new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest. By doing so, courts have allowed the new crime exception to swallow two separate exclusionary rules.

Courts, however, can recalibrate the exception by focusing on the purpose and flagrancy of the defendant’s new crime. By using an approach that draws from the future crime exception to attorney-client privilege and the public safety exception to the Miranda exclusionary rule, courts can replace their current “all or nothing” approach with a cost-benefit balancing that will better serve public policy goals in a more nuanced way.