Excluding Evidence

[Mr. P]

First off, there's a difference between the Constitution and Constitutional Law. Constitutional Law is whatever the SCOTUS says it is. Abortion as a right and as a privacy issue is Constitutional Law, despite the fact that it is nowhere in the Constitution. The idea of exclusionary law is a fairly recent phenomenon, even within the limited scope of 230 years of U.S. history.

Second off, the neutrality of that Wikipedia article is in dispute, meaning that even Wikipedia, foolish believers in random public knowledge, don't even claim it's correct.

Well all law flows from the Constitution, Hobbit. In this case the 4th & 5th amendments. You don’t like Wikipedia? Try this…..
http://www.law.cornell.edu/anncon/html/amdt4frag5_user.html

 

[Hobbit]

Well all law flows from the Constitution, Hobbit. In this case the 4th & 5th amendments. You don’t like Wikipedia? Try this…..
http://www.law.cornell.edu/anncon/html/amdt4frag5_user.html

That's the best explanation I've seen yet. It's quite good. However, I still think we should explore other avenues of enforcing the fourth ammendment that don't involve exclusion of sound evidence. The reason coerced confessions are tossed is because they're typically not valid, but evidence speaks for itself. If the evidence clearly shows that the defendant is guilty, there's really no reason to put public safety at such a huge risk in the name of his constitutional rights. I think the right of the public not to be murdered should outweigh the defendant's right against unreasonable search, and other means should be found to ensure that right. I mean, there have been several cases in the past where children as young as three have been raped and tortured to death and left to lie in a ditch, mutilated, by somebody who had already been proven to be a psychopathic killer. These little kids would still be alive if the evidence against their killers wasn't excluded due to shady evidence gathering procedures. I mean, there's even an exception to the doctor/patient priviledge if public safety is at issue, why not with excluding evidence?

 

[pegwinn]

My absolute favorite topic, next to babes in bikinis and beer, is criminal justice reform. Points to Hobbit for starting it.

Being a lazy typer, I am gonna cut and paste from here. Since I wrote it, it reflects my opinion perfectly. Besides, old topics need revived from time to time.

One of my personal favorites as a kid was Superman (a registered trademark of DC Comics and an American Icon). This guy rocked. Superman fought crime in America. He took on the bad guys and always triumphed. He stood for “Truth, Justice, and the American Way”. Over the years, his comic remained, but Supes has gone into hiding. If he stood up for the current “American Way” now, he’d be a bad guy.

What does truth and fighting crime have in common? Not much. Did you know that our criminal courts don’t care about truth? They exclude actual factual evidence on technicalities. They allow manipulation of juries in ways that have no bearing on facts. They will interpret the law to suit the defendant, but almost never the prosecution.

Here’s how criminal court should be conducted:

NO JURY MANIPULATION: The trial takes place in the locality of the crime. The jury consists of 15 (12 primary and 3 alternate) registered voters. If someone registers to vote you can be assured they actually give a damn. And it is reasonable to assume they are smart enough to receive, analyze, and understand evidence and instruction. They are chosen by lottery. The only one who can exclude anyone is the judge. His exclusions are limited to the number of alternates available. Lawyers may present detailed requests for exclusion, but they should not have the right of peremptory dismissal. The idea is that to be truly impartial, neither side should be allowed to shape the jury. Oh yeah, and all jury costs are equally split between the two parties as long as the defense isn’t court appointed. There have been appeals based on the jury being paid by the state.

NO EXCLUDING EVIDENCE: Remember, the new objective of the criminal court is to ascertain TRUTH. Guilt or Innocence will flow from the absolute facts of the matter. So, no evidence can be excluded. The judge has an obligation to ensure the jury receives the facts. IF evidence was obtained illegally then the judge must accept the evidence and initiate a separate prosecution. If it became a rock steady tenet of law that illegal searches would be prosecuted, there would be far less alleged corner cutting by law enforcement.

STICK TO THE FACTS: Each juror should receive a briefing paper from both sides. It needs to resemble a military JAG (Judge Advocate General) investigation in content. Basically it would outline the facts of the case (and each fact must cite an item of evidence), form opinions (which are based solely on the facts cited before), and provide recommendations (which must rely on the facts cited, and obviously flow from the opinions formed). This is not the entire case. But, the jury then has a script, a program if you will, of the proceedings. This will allow them to monitor testimony and possibly see tricky strategy as it happens. Finally, there needs to be a twist. The jury should be able to submit questions to the attorneys and the judge should compel them to answer. For a separate class on constructing an ironclad investigation document, go read chapter two of the Jag Manual itself.

COMPEL TESTIMONY: Ok, here it is. Fix the 5th Amendment. “…nor shall be compelled in any criminal case to be a witness against himself…” This needs to go. Since our Constitution is a “Living Document”, we need to realize that in the late 18th century the “compelling” was a euphemism for torture. I believe that in order to get to the truth, we can now compel truthful answers using a polygraph, or truth serum. Like it or not, it is common knowledge that if you invoke the 5th amendment at all you are likely hiding something. There are a few social misfits out there who invoke the 5th just for the pleasure of watching the court jump through hoops. But the overwhelming majority of the people who “didn’t do it” are happy to help prove they are innocent. By compelling (humanely) a truthful answer we will eliminate a huge number of trials by excluding the innocent.

PUT APPEALS IN LINE BY SEVERITY: Here’s another one guaranteed to tick off the many. Appeals should be heard by severity in order to either set aside or implement the harshest sentence. Assume you are found guilty of murder and sentenced to life without parole. Assume the other felon is sentenced to death. The death penalty case should hit the appeal docket first. Obviously it would fall in behind older death penalties. It makes no sense for a fifteen-year gap between sentencing and actual completion of sentence.

Our courts are still the best in the world. But as times change the old and new rules and attitudes are jumbled up in a mess of confusions that snarl up what should be a straightforward process. If we focus more on the truth, we will actually end up protecting the innocent and assuring more fair trials for the accused. By focusing on Truth first (as Superman did) we will make sure that everyone is accountable and actual Justice is achieved.

Edited to add: You must spread some Reputation around before giving it to Hobbit again.

 

[Hobbit]

My absolute favorite topic, next to babes in bikinis and beer, is criminal justice reform. Points to Hobbit for starting it.

Being a lazy typer, I am gonna cut and paste from here. Since I wrote it, it reflects my opinion perfectly. Besides, old topics need revived from time to time.



Edited to add: You must spread some Reputation around before giving it to Hobbit again.

I appreciate the props and I'm always in favor of intelligent discussion, agreeing or dissenting. I like the ideas you posted, except for one. I don't think people should be compelled to testify against themselves. Right now, if someone refuses to answer a question based on the 5th ammendment, their entire testimony is stricken from the record and everybody knows they did it, so I don't think it's necessary to scratch that one. However, I do think it should be legal, like excluded evidence right now, to compel you to say something potentially incriminating, provided that it's never used against you in court. It would make it easier to get the truth if people could invoke the 5th and tell the truth.

 

[pegwinn]

I appreciate the props and I'm always in favor of intelligent discussion, agreeing or dissenting. I like the ideas you posted, except for one. I don't think people should be compelled to testify against themselves. Right now, if someone refuses to answer a question based on the 5th ammendment, their entire testimony is stricken from the record and everybody knows they did it, so I don't think it's necessary to scratch that one. However, I do think it should be legal, like excluded evidence right now, to compel you to say something potentially incriminating, provided that it's never used against you in court. It would make it easier to get the truth if people could invoke the 5th and tell the truth.

We've actually been down this exact path. Click the link and you can see that neither of us has changed opinions......... much. The rest of the board may enjoy it as well.

I would like to see the truth become the standard by which we measure justice. So, I have no problem with the concept of "truth drugs" or "truth machines" to ensure that anything said is in fact the truth as the speaker believes it.

In that vein I would be willing to compromise and not compel testimony, but instead would simply ensure that one was either silent or truthful. The right to remain silent would be respected, but if you choose to speak we reserve the right to verify the truth of your statements.

Speaking of truth machines, here's a free book for scifi fans that illistrates my "truth is justice" scenario.

Have a good one.

 

[Hobbit]

The primary problem with the truth drugs and truth machines is that they're unreliable. Polygraphs are iffy at best and can give wild results if somebody knows how to play it, has wierd body chemistry, or is overly nervous at the time. As for the drugs, they can make a person delusional. The only ones I've heard of that have had reliable results only work in amounts that can cause permanent brain damage (alcohol is one of them).

 

[pegwinn]

It's not about discipline for the cops. Absolutely. Not about disciplining the cops, or the DA's, or the PI's. It's about seeking the truth.

It's about maintaing a fair system of justice that is run according the law and the Constitution. No it isn't. There is nothing inherently fair or impartial about the US Constitution. The US Constitution is there to protect your rights, my rights, black rights, white rights, Gay rights, Straight Rights, Wiccan Rites, etc etc etc. We assume that one is innocent until proven guilty.

Just because you don't like the fact that someone you think may have killed someone is let out because the cops failed to follow the law and the Constitution is not reason enough to jeopardize our entire system of justice, which is predicated on the simple maxim "innocent until proven guilty." Your proposal changes that to "innocent unless we think you are guilty in which case we can do whatever is necessary, legal or not, to try and prove it." Apparently I no reada de Engrish. All H has said is that no evidence should be excluded and that illegal searches should be prosecuted as separate cases. Just because you purport to be "ACLU" does that really mean you want predators on the outside lookin in............ your windows?

The exlusionary rule is a necessary safeguard to protect the Constutional right of the accused to a fair trial. With respect, No it isn't. I don't even fully believe that the fifth amendment is fair to us whose rights are violated by criminals. I do believe that if I conduct an illegal search, I should be prosecuted regardless of the results of the search. That way your rights and societies rights are equally protected. Vigilantism exists in part because of the sheer numbers of criminals released every year due to plea bargaining and technicalities.

acludem

No offense ACLUDem, but I believe that the truism "the truth shall set you free" applies to society not to criminals.


IN the above in a pun, first one to point it out via PM gets Repped. Consider it a Sunday surprise. :teeth:

 

[Diuretic]

There's a very good book that's probably out of print now that is an autobiography called "Chief!" written by (okay you can bring out the 'ghostwriter' jokes) a former chief of detectives of NYPD. It's a good read. It explains how in his day, which I think from memory was the late forties/fifties up until the sixties/early seventies, it was simply common practice for police to beat suspects during interrogation. If my memory serves me correctly the Chief made a bit of an error one day when he wandered into an interview room and began punching out a man being questioned by detectives until the detectives told the Chief he was belting a witness. Not the best for your case.

The problem is not so much belting suspects - the criminal law prohibits that - but the quality of the evidence. If you beat the shit out of someone they'll tell you what you want to know but do you want to live in a society that condones that behaviour?

Miranda and other US Supreme Court judgements have, over the years, worked to make it unprofitable, if I can use that word, for police to mistreat suspects. And that's a good thing. One of the offshoots is that it creates more professional police.

 

[pegwinn]

I don't wanna beat suspects. I want the absolute truth presented to the jury and they make an informed decision.

I mean, lets be real, I doubt that when the rights of the accused were written no one expected to exclude the truth.

We need to perfect the truth drugs and lie detection equipment and use it in interrogations. He has the right to remain silent, but he doesn't have the right to lie if he chooses to speak.

 

[MissileMan]

I don't wanna beat suspects. I want the absolute truth presented to the jury and they make an informed decision.

I mean, lets be real, I doubt that when the rights of the accused were written no one expected to exclude the truth.

We need to perfect the truth drugs and lie detection equipment and use it in interrogations. He has the right to remain silent, but he doesn't have the right to lie if he chooses to speak.

If only the absolute truth is presented in courts, you can do away with the jury.

 

[pegwinn]

If only the absolute truth is presented in courts, you can do away with the jury.

You could I suppose. Instead thier focus of effort would shift to punishment. They would spend time considering matters of extenuation, mitigation, or aggravation.

Even with absolute truth, trials won't be quite cut and dried.

 

[Bullypulpit]

Rules of evidence, including the exclusionary rule, exist to protect the citizenry, especially innocent citizens, from the abuse of power by the authorities. Throw those rules out the window, and you have a police state.

 

[Bullypulpit]

If only the absolute truth is presented in courts, you can do away with the jury.

Given the limitations of human perception and conception, the notion of absolute truth is an illusion.

 

[MissileMan]

You could I suppose. Instead thier focus of effort would shift to punishment. They would spend time considering matters of extenuation, mitigation, or aggravation.

Even with absolute truth, trials won't be quite cut and dried.

Screw that...mandatory sentences! Everyone gets the same punishment for the same crime.

 

[MissileMan]

Given the limitations of human perception and conception, the notion of absolute truth is an illusion.

I concur...was pointing out that you wouldn't need a jury to decide the truth if that was all that was presented.

 

[Gunny]

Given the limitations of human perception and conception, the notion of absolute truth is an illusion.

Bull, Bully. The "notion" of absolute truth is absolute. Fact exists unprejudiced until perceived. Remove biased perception by presenting only actual fact, and you have absolute truth.

 

[Bullypulpit]

Bull, Bully. The "notion" of absolute truth is absolute. Fact exists unprejudiced until perceived. Remove biased perception by presenting only actual fact, and you have absolute truth.

How do you removed "biased" perception when everything we percieve is filtered through the mesh of emotions, experiences, prejudices and preconceptions we each carry around with us, on a continuous and ongoing basis? The only time we, as humans, would not carry out this process would be if we were unconscious. Then perception is not an issue.

Can we percieve a thing as it truly is? Or only as it has come to be? Based upon my experiences, I can only say the latter.

 

[Gunny]

How do you removed "biased" perception when everything we percieve is filtered through the mesh of emotions, experiences, prejudices and preconceptions we each carry around with us, on a continuous and ongoing basis? The only time we, as humans, would not carry out this process would be if we were unconscious. Then perception is not an issue.

Can we percieve a thing as it truly is? Or only as it has come to be? Based upon my experiences, I can only say the latter.

Fact is fact, not biased by perception. The sky is blue. Grass is green. Liberals are evil ) ).

The embelishments on those facts are what prejudices perception. Anyone who is trained to not allow perception to cloud fact, can easily make a decision based solely on unbiased fact.

 

[Bullypulpit]

Fact is fact, not biased by perception. The sky is blue. Grass is green. Liberals are evil ) ).

The embelishments on those facts are what prejudices perception. Anyone who is trained to not allow perception to cloud fact, can easily make a decision based solely on unbiased fact.

Perceptions will always "cloud" facts...It is hardwired into the very way in which we percieve the world around us.

 

[no1tovote4]

How do you removed "biased" perception when everything we percieve is filtered through the mesh of emotions, experiences, prejudices and preconceptions we each carry around with us, on a continuous and ongoing basis? The only time we, as humans, would not carry out this process would be if we were unconscious. Then perception is not an issue.

Can we percieve a thing as it truly is? Or only as it has come to be? Based upon my experiences, I can only say the latter.

A portion of the training of our Special Forces is to recognize and filter out propaganda. One can recognize their own perceptions through introspection, they can also get past them, be far more careful in judgement when regarding their own perceived prejudice. To say it is impossible to make decisions based in logic because we have prejudice hardwired into us ignores the ability of people to recognize and deal with their own preconceived notions as well as what others work to place in our minds through propaganda.