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Should Suspects Go Free When Police Blunder?
New York Times ^ | July 19, 2008 | Adam Liptak

Posted on 07/18/2008 12:03:59 PM PDT by reaganaut1

...

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 ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; News/Current Events
KEYWORDS: 4thamendment; billofrights; exclusionaryrule; fourthamendment; gramsci; judiciary; justice; miranda; scotus; supremecourt; tortreform
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To: supercat; trublu

He (or she) was talking about crimes against “society,” which is an impossibility. There can only be crimes committed against individuals. I was challenging his/her basic premise. There are no collective “rights;” there can be no collective “victims.” As to the notion of allowing police officers to present tainted evidence at trials, without some SERIOUS personal penalties to keep them straight, my answer is NO WAY. And I mean some seriously Draconian penalties, like dismemberment, as a means of dissuading them from bypassing the Fourth Amendment requirements or lying in their warrant applications.


81 posted on 07/19/2008 2:43:07 PM PDT by dcwusmc (We need to make government so small that it can be drowned in a bathtub.)
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To: traviskicks
“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.”

Sure -- let's just give judges even more power.

Asd as for LEO side of things, when police who engage in misconduct now are consistently and justly prosecuted and sanctioned, we can talk about giving them more leeway. Until then, no sale.

In both cases, you don't give people more power and resources when they aren't appropriately handling the level they currently have.

82 posted on 07/19/2008 2:58:18 PM PDT by ellery (It's a free country.)
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To: ellery
“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.”

Sure -- let's just give judges even more power.

I would suggest that in many cases the issue should legitimately be up to the jury. A judge should throw out evidence if there is no way it could be reasonably construed as legitimate, but even if a judge rules that evidence could be construed as legitimate, it should be up to the jury to decide whether or not to so construe it in a particular case. I expect that if judges didn't actively prevent juries from making such determinations, they would do a much better job of enforcing the Fourth Amendment than judges do.

83 posted on 07/20/2008 3:20:45 PM PDT by supercat
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To: elkfersupper

The framers of the Constitution envisioned small government, not no government. They certainly didn’t envision a government which would arrest someone and then, despite clear proof that the person had committed a serious crime, set the person free without so much as a note in the court’s or police records about the crime, giving the criminal the opportunity to go on committing such crimes at the expense of innocent citizens. All the criminal-coddling evidentiary rules and Miranda warnings and similar stuff is very modern, and defies common sense. The purpose of laws and courts is protect society at large from the harm inflicted by criminals. If you happen to get hold of two at the same time, one whose crime is knowingly searching without a warrant or other legal right, thus providing proof of the other’s guilt, prosecute both of them.


84 posted on 07/20/2008 9:27:04 PM PDT by GovernmentShrinker
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To: dcwusmc

Ok, maybe I misued the word “society”. Having had a family member that was murdered, I can tell you that crimes committed against individuals deeply affect a much larger group than the victim. Even if you arent’t the one who lost his life, you can feel victimized, angry, vengeful. You can demand justice.


85 posted on 07/21/2008 4:53:56 AM PDT by trublu
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To: supercat

Whether .1% of criminals being given another chance to prey on society is significant depends if it is your wife and daughter they rape and murder or someone else’s.


86 posted on 07/21/2008 3:19:30 PM PDT by stop_fascism
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To: stop_fascism
Whether .1% of criminals being given another chance to prey on society is significant depends if it is your wife and daughter they rape and murder or someone else’s.

Keeping the police honest will reduce the crime rate more than letting them get away with unlawful practices. It may be that in some particular cases people are victims of crooks who would otherwise be behind bars, but that is far more than counterbalanced by the harm that is prevented.

Actually, I would like to see juries play a part in 'exclusionary rule' evaluations. Let the jury know how evidence was obtained, and inform them that they have a duty to disregard evidence found as a result of a search that they deem unreasonable or illegitimate.

That would probably improve police conduct (and thus citizens' willingness to assist police) even more than the present exclusionary rule, since police would have to avoid activities that would alienate the citizenry. Under the present system, police face no consequence if they use unreasonable practices in a search that yields no evidence. But if such practices occurred with such regularity as to promote citizen distrust of police, that would likely reduce a jury's willingness to accept such practices when rendering their verdicts.

87 posted on 07/21/2008 4:25:47 PM PDT by supercat
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To: Ainast
This is a problem, esp in small towns. I know.

They have extra sensory perception in small towns?

88 posted on 07/21/2008 4:30:38 PM PDT by humblegunner
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To: GovernmentShrinker

We have thought and vegetation crimes now.


89 posted on 07/21/2008 6:29:43 PM PDT by elkfersupper
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To: supercat

I agree about the jury evaluating evidence. You can’t really call that the exclusionary rule, however, since the evidence is no longer being excluded from trial. I’d also like to see the police be liable from civil lawsuits in the case of misconduct. Might be difficult to apportion damages though.

However, I really don’t understand how “Keeping the police honest will reduce the crime rate more than letting them get away with unlawful practices.” Would you care to elaborate. I suppose that letting the guilty go free technically lowers the crime rate, but I don’t think that’s what you had in mind.


90 posted on 07/21/2008 6:35:44 PM PDT by stop_fascism
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To: stop_fascism
I agree about the jury evaluating evidence. You can’t really call that the exclusionary rule, however, since the evidence is no longer being excluded from trial.

No, but telling the jury that they should disregard evidence if they don't think it was collected reasonably would probably work almost as well, at least in many cases of gross misconduct. While it is true that a jury may be willing to overlook even blatant misconduct against sufficiently heinous defendants, that would be counterbalanced by the facts that (1) their tolerance for misconduct would be depend upon the extent to which they trust police, so police would need to avoid alienating potential jurors, and (2) I sometimes wonder if some leftist judges are more eager to throw out evidence of heinous crimes than lesser crimes, as an excuse to be rid of the exclusionary rule (same principle as the INS's efforts to deport, shortly after 9/11, an applicant for citizenship who was in the country on the work visa of her husband who was killed in the WTC).

However, I really don’t understand how “Keeping the police honest will reduce the crime rate more than letting them get away with unlawful practices.” Would you care to elaborate. I suppose that letting the guilty go free technically lowers the crime rate, but I don’t think that’s what you had in mind.

For the police to be most effective, they have to have the trust and cooperation of the citizenry. The more the police flout the law, the less the public will trust them. Having the police obey the law so as to win back public trust would improve their effectiveness by more than 0.1%.

91 posted on 07/21/2008 9:00:21 PM PDT by supercat
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To: GovernmentShrinker

Soooo...exactly which part a government would you like to shrink?


92 posted on 07/21/2008 9:21:55 PM PDT by patton (cuiquam in sua arte credendum)
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To: elkfersupper

My brother had some trees down at his house, about a milt frome here.

I sawed them up, rented a wood splitter, and stacked two cords of wood at my place for the stove this winter.

That was hot, hard work.

Oak, cherry, and maple.

A week later, my wife comes across a quarrantine notice - it is a misdemeanor to remove hardwood from Fairfax County, VA, due to an infestation of the “emerald ash beetle.”

Well, I had removed those tow cords of wood from Fairfax - he is on one side of the line, I am on the other.

So I double checked the date of the quarrentine. Whey, it was issued the day after I did it.

Thank goodness, I could have been a felon, or something.


93 posted on 07/21/2008 9:30:21 PM PDT by patton (cuiquam in sua arte credendum)
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To: patton
Soooo...exactly which part a government would you like to shrink?

Oh my, where to begin? First shut down the US Department of Education (5000 employees, $70 billion aannual budget). Then replace the IRS (100,000 employees, $10 billion annual budget) with one Internal Revenue Clerk, whose job is to record and deposit the checks sent in by the states, DC, and PR -- one check per year per state -- states to pay their share of federal budget in order for their congresscritters to have votes -- states to figure out how to raise the cash, creating healthy competition between states to come up with a non-invasive, non-business killing state revenue system. Bye-bye BATF, 5000 employees, $1 billion annual budget. Several more federal departments/agencies are 99-100% shrinkable. The rest, excepting the military, are at least 50% shrinkable. Most state-level government agencies are 50-75% shrinkable, and some are long overdue for complete elimination (e.g. the state education departments).

And of course there are millions of nickel-and-dime shrinkings that need to be done, such as 1) the genius in the Iowa state government who decided that whole pumpkins sold in grocery stores needed to be taxed because most people weren't really using them as food which would be tax-exempt, and then promulgated a form that checkout cashiers were to keep handy and have customers fill out if they wanted to avoid the tax by attesting that were not going to use the pumpkin as food; 2) the genius in the New York City something-or-other department, who issued fines to delis that sold self-serve hot and cold bar food at a posted per-pound weight but charged an unposted, flat, deeply discounted price to customers who bought only french fries from the hot bar (yes, the genius actually figured that the public needed to be protected from french fries being sold at less than half the posted price) -- just eliminate these positions, since if they actually had an important work to do at all, they wouldn't have had time for this idiocy.

94 posted on 07/22/2008 10:15:33 AM PDT by GovernmentShrinker
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To: GovernmentShrinker

Hey - we agree on every thing you said!


95 posted on 07/22/2008 10:23:02 AM PDT by patton (cuiquam in sua arte credendum)
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To: patton

But I still want criminals locked up, even if the government broke some rules in the course of finding out that they’re criminals. If the rule-breaking was serious and intentional, it should buy some lock-up time too. Otherwise, firing, demotion, fines, community service, etc.


96 posted on 07/22/2008 12:10:05 PM PDT by GovernmentShrinker
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To: patton

That is ridiculous.


97 posted on 07/22/2008 6:34:46 PM PDT by elkfersupper
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To: elkfersupper

It seems we have the government we deserve.


98 posted on 07/22/2008 6:36:38 PM PDT by patton (cuiquam in sua arte credendum)
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