Exclusionary Rule to Die?

[William Joyce]

Today's NYT has a story on it.

I think it would be great.

The exclusionary rule was created to benefit minority criminals at the expense of white victims.

 

[jillian]

The exclusionary rule is ameans of effectuating the Fourth Amendment. Without it, there's no such thing as unlawful search and seizure. The right wingnuts have been trying to kill it for a long time.

one would think an attorney would know that if he weren't so consumed with feeling sorry for his ugly scrawny butt.

 

[Annie]

The exclusionary rule is ameans of effectuating the Fourth Amendment. Without it, there's no such thing as unlawful search and seizure. The right wingnuts have been trying to kill it for a long time.

one would think an attorney would know that if he weren't so consumed with feeling sorry for his ugly scrawny butt.

Jillian, seems to me that if one holds the law enforcers personally responsible, for use of a warrant, it's unnecessary. It's the immunity of officers that makes it necessary, no? So how did the immunity come about? Wasn't always there, but thanks to judicial activism, it is now.

We can all be consistent.

More: The Volokh Conspiracy - -

 

[PoliticalChic]

Today's NYT has a story on it.

I think it would be great.

The exclusionary rule was created to benefit minority criminals at the expense of white victims.

First of all, I may not agree with your analysis of the provenance of the exclusionary rule, but I want to thank you for this thread... I have always found this concept fascinating.

Also, the idea that we must look to Europe for insight on this question is typical to the NYTimes view. I have always thought that the Civil Law concept is more consistent with the American Constitution than the Civil Law (European) view which allows the presiding judicial authority to rule on both matters of law and matters of fact. I like the Common Law view which allows a jury to determine facts.

I agree with Scalia:
Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

The idea of eliminating evidence, which I think fair for the jury to view, seems too harsh and slants the system in an unfair way. I contend that a body of rules and regulations, resulting in punishments for law-enforcers who break the rules, would be more in keeping with justice.

 

[Diuretic]

Punishment of law enforcement? That might be appropriate for an egregious search situation but not for a situation where a police officer was mistaken rather than malicious. If you insisted on punishment for normal police activity then the police would simply stop that activity.

In my jurisdiction police have very broad powers to search in various circumstances. But strangely enough those powers are not seriously abused. There are probably many reasons for that situation but one of them surely must be that the police officer who egregiously abuses his or her authority is sued personally. The police officer here (in Australia generally and in the UK) can't rely on any doctrine of liability by the employer. Trust me that's a big part of ensuring abuse of authority is limited.

On the other hand here - as the link in the NYT pointed out - judicial discretion as to whether to admit evidence or not is also very broad. A judge will balance probative value against the prejudicial nature and the public interest and the need to ensure police obey the rules. It seems to work okay.

 

[dilloduck]

Punishment of law enforcement? That might be appropriate for an egregious search situation but not for a situation where a police officer was mistaken rather than malicious. If you insisted on punishment for normal police activity then the police would simply stop that activity.

In my jurisdiction police have very broad powers to search in various circumstances. But strangely enough those powers are not seriously abused. There are probably many reasons for that situation but one of them surely must be that the police officer who egregiously abuses his or her authority is sued personally. The police officer here (in Australia generally and in the UK) can't rely on any doctrine of liability by the employer. Trust me that's a big part of ensuring abuse of authority is limited.

On the other hand here - as the link in the NYT pointed out - judicial discretion as to whether to admit evidence or not is also very broad. A judge will balance probative value against the prejudicial nature and the public interest and the need to ensure police obey the rules. It seems to work okay.

You sister city has effectively hand cuffed it's police force in this very way. Fear of the financial and social backlash has resulted in them resorting to timidity and weakness.

 

[William Joyce]

The exclusionary rule is ameans of effectuating the Fourth Amendment. Without it, there's no such thing as unlawful search and seizure.

As Annie (and my ol' crim pro prof) note, you could fire the cops. But the cops ain't havin' that -- they'd prefer the exclusionary rule, I bet. I dig the Fourth, myself.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But as any lawyer knows, "unreasonable" has some flex room. I'd just give cops some healthy breathing room for what's reasonable. It would not normally include kicking in doors without a warrant or torture. A lot of "right wingnuts" object to this more than any liberal, believe me.

 

[Annie]

The exclusionary rule is ameans of effectuating the Fourth Amendment. Without it, there's no such thing as unlawful search and seizure.

As Annie (and my ol' crim pro prof) note, you could fire the cops. But the cops ain't havin' that -- they'd prefer the exclusionary rule, I bet. I dig the Fourth, myself.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But as any lawyer knows, "unreasonable" has some flex room. I'd just give cops some healthy breathing room for what's reasonable. It would not normally include kicking in doors without a warrant or torture. A lot of "right wingnuts" object to this more than any liberal, believe me.

Thanks for bringing up the 'no knock' problem. Jillian?

 

[pegwinn]

I like how, from time to time, some topics always return.

http://www.usmessageboard.com/law-and-justice-system/33117-excluding-evidence-3.html#post447483

http://www.usmessageboard.com/current-events/5416-bring-back-superman.html#post68972

 

[Diuretic]

...........


You sister city has effectively hand cuffed it's police force in this very way. Fear of the financial and social backlash has resulted in them resorting to timidity and weakness.

It has? Not good. But then the employing authority will always take the easy way out.

 

[Diuretic]

I don't know what the situation is now in France but it used to to be the case that exclusionary rules weren't as strict as they are in common law countries. Apparently a judge can admit evidence, even hearsay, but give it it's due weight. The other interesting thing is that most serious investigations see the police judicially supervised. The point about an exclusionary rule is to ensure police comply, if someone's looking over their shoulder then the reason for the rule begins to fade.

 

[editec]

Given that cops are well known liars under oath when it comes to even minor offenses, it behooves us to monitor these monitors very closely.

 

[RetiredGySgt]

Given that cops are well known liars under oath when it comes to even minor offenses, it behooves us to monitor these monitors very closely.

What a load of shit. Do some cops lie? Sure they do. BUT you claiming they all do is part and parcel of the problem we have with juries turning criminals loose.

 

[Diuretic]

Given that cops are well known liars under oath when it comes to even minor offenses, it behooves us to monitor these monitors very closely.

That's a huge generalisation and as such simply wrong. I'm not stupid enough to say cops don't lie under oath, some have and do and will in the future. But the courts - at least where I am - don't accept the oral evidence of a police officer on face value. It's a desperate, pathological or very stupid copper who lies under oath.

Back to the French system. The judicial supervisors are investigating magistrates, lawyers in other words.