Posted on 07/18/2008 12:03:59 PM PDT by reaganaut1
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The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.
“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”
But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”
The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of the careless record-keeping of another police department.
Elsewhere in the world, courts have rejected what the Ontario appeals court in Mr. Harrison’s case called “the automatic exclusionary rule familiar to American Bill of Rights jurisprudence.”
(Excerpt) Read more at nytimes.com ...
If there is no punishment for errors, there won't be much incentive to avoid them.
Jurors would be instructed that any search that was unreasonable in either justification or execution was illegitimate; further, a jury would have to determine that a court's ruling of "probable cause" was at least reasonable given the evidence and sworn personal knowledge put before the court. Jurors would be instructed that they had a duty to disregard any evidence that it found to have been gathered illegitimately.
Certain aspects of the Constitution are supposed to change with the times. Changing technologies may make actions that were unreasonable, reasonable, and vice versa. On the other hand, it's not the role of judges to decide what people's changing attitudes are; that's a job for the people themselves.
PS--One major side-effect of having a jury decide issues of reasonableness: the more people feel themselves to be at risk from things like midnight raids, the less inclined they may be to regard such things as reasonable. Having a judge exclude evidence won't punish police for their wrongful behavior in cases when there's no evidence to be had. Putting a jury in that role would force cops to avoid such things.
He should be allowed to argue, in his defense, that he had a reasonable belief that his actions were lawful. Indeed, I would argue that in any criminal trial, the fact that a defendant had a reasonable belief that his actions were lawful(*) should preclude a finding of guilt for anything beyond a civil infraction. The $50,000 question would be whether a jury would find the defendant's belief reasonable.
(*) More generally, I would suggest that a reasonable belief that a particular action was no worse than a particular level of offense should generally preclude prosecution for anything more than a level up.
Absent the exclusionary rule, cops who use illegal means to get evidence that yields convictions will tend to get a "NEVER DO THAT AGAIN (wink wink)" from their bosses. Prosecutors have little incentive to go after cops who help them get convictions, and judges don't have any authority to punish such cops themselves.
On the other hand, if a cop uses illegal means to get evidence and cases get thrown out as a result, the cops' bosses are going to be very unhappy. Since cops don't want to anger their bosses, they'll have a strong incentive to avoid having their cases thrown out.
If the police mess up 0.1% of the time, then letting 0.1% of criminals get another chance to prey on society because of the exclusionary rule is a small price to pay for having a lawful police force. If police mess up 10% of the time, the 10% of criminals who are let go will be a small problem compared to the ones on the force.
Indeed. I would prefer to think we're the only nation in the world that insists on a higher degree of professionalism from our police officers than we do from our criminals.
The bigger problem is courts' willingness to essentially ignore the Fourth Amendment's "oath or affirmation" requirement. Judges routinely rubber-stamp warrants with no physical evidence and no oath or affirmation relating to any relevant personal knowledge whatsoever.
If I swear under oath that I saw someone dragging into his house a little girl who had been reported kidnapped, and it can be shown that I deliberately lied about that, I can be charged with felony perjury. While the probability of my getting prosecuted for lying would probably be pretty low (since the prosecution would have to show that I could not have believed my statements to be true), the fact that I took the oath would mean that someone would be accountable if the whole thing was completely made up.
By contrast, if I tell a cop and a cop simply testifies that I told him I saw the girl, then in the absence of sworn testimony related to personal knowledge, a judge should refuse a warrant unless I personally make a sworn statement. Otherwise, even if I made the whole thing up, the most I could be charged with would be misdemeanor filing a false police report.
And I could explicitly state that the Shredded Cheese Fairy is magically going to drop from the heavens and fix all the zip-seal packages that tear below the seal. Frankly I'm not sure that my prediction is any less probable than yours.
An LEO may not be able to do so legitimately. That doesn't mean that LEOs can't or don't.
Which court wrote Article VI and Amendment IV?
Article VI says the Constitution is the Supreme Law of the Land. That means any government action which is contrary to the Constitution is illegitimate.
It's curious that the notion that action contrary to the constitution is illegitimate is seldom really explored. As applied to the Fourth Amendment, it means that there is no legitimate chain of custody tying evidence to an illegitimately-search property. Evidence which is gathered in an illegal search should be regarded no more favorably than evidence recovered from a burglar that would implicate someone against whom the burglar has a known vendetta.
Some criminals, anyway.
I would expect that a Mafia hit man who attacked the wrong house would have a significant likelihood of becoming a model for a new line of heavyweight footwear.
No.
Crimes should never cancel each other.
If two crimes have been committed, both should be punished.
It's not rocket science.
He’s an FBI killer. Almost as bad as being a BATFag, though.
Crimes are NOT committed against “society.” Crimes are committed against INDIVIDUALS. Just as there can be no such thing as group “rights,” there is no such thing as “group victims.” Only individuals.
Should Suspects Go Free When Police Blunder?
No.
Crimes should never cancel each other.
So, when someone lies to get a search warrant to enter your home, and, for some reason they find something they shouldn’t, even though they were not looking for it, you are ok with that? No wonder this country is leaning towards Obama. Maybe your child downloaded some music on your computer they shouldn’t have, you ready to go to jail for that?
As I have pointed out before, interesting screen name - in direct conflict with your comments.
What?
Are you posting from Iran?
It will never work, and meanwhile the aggression marches on.
The Constitution is the Supreme Law of the Land. Any government action contrary to the Constitution is illegitimate. If cops take evidence from somebody's home without having a warrant that was issued on the basis of an oath or affirmation of personal knowledge sufficient to constitute probable cause, there is no reason why that evidence should be regarded as being in any way superior or more trustworthy than evidence given to the cops by a thief.
Are we in disagreement here? On either part? Correct me if I’m wrong, but I don’t think so.
Okay, I reread your post and the one you were responding to; even on re-reading your intention wasn't exactly clear, and is somewhat orthogonal to the issue in the responded-to post.
The responded-to post claimed that society shouldn't lose its right to exact vengeance on a crook just because a cop made a mistake. Your comment that the crook didn't victimize 'society' as a whole, but rather a number of individuals, in no way argues against the notion that victimized individuals shouldn't have their attacker go free just because of a cop's mistake. I mistook you as supporting such a notion.
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