Exclusionary Rule to Die?

Discussion in 'Law and Justice System' started by William Joyce, Jan 31, 2009.

  1. William Joyce
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    William Joyce Chemotherapy for PC

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    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.
     
  2. jillian
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    jillian Princess Supporting Member

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    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.
     
  3. Annie
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    Annie Diamond Member

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    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 - -
     
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  4. PoliticalChic
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    PoliticalChic Diamond Member

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    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.
     
  5. Diuretic
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    Diuretic Permanently confused

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    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.
     
  6. dilloduck
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    dilloduck Diamond Member

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    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.
     
  7. William Joyce
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    William Joyce Chemotherapy for PC

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    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.
     
  8. Annie
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    Annie Diamond Member

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    Thanks for bringing up the 'no knock' problem. Jillian?
     
  9. pegwinn
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    pegwinn Top of the Food Chain

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  10. Diuretic
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    Diuretic Permanently confused

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

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