Question for the lawyers here

Discussion in 'Environment' started by Baruch Menachem, Feb 17, 2010.

  1. Baruch Menachem
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    Baruch Menachem '

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    Is all evidence discovered by illegal means necessarily excluded?


    There was a story a few years ago where some burglar turned over a stash of snuf/Child porn he found in someone's house. That stuff would have been excluded, right? The householder would walk because the cops got it from a tainted source.



    Since the climate Emails were obtained by illegal means, does that mean that in any lawsuit against an agency claiming that since the EARU was engaged in fraud, they can't use the emails in preparing their case?



    Where does a government loose good faith protection if their is suspicion that the basis of their regulation is fraudulent data, which they took on face value because the source was supposed to be good?

    I am just wondering how lawyers would argue the case.
     
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  2. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    I've never done criminal law, but at least part of the answer is pretty basic. The 4th Amendment just like the First applies to government, not citizens. Many informants and witnesses are criminals giving information gained as a result of criminal activity. The exclusionary rule applies to evidence obtained illegally by police and other government agents, not to information that may have been obtained illegally by citizens. There are probably nuances there that somebody in criminal law would know better than I, but that's your basic rule.

    In a civil case you might have a hard time getting past the 5th Amendment though. In a criminal case the prosecutor can compel self-incriminating testimony by granting immunity. In a civil case any self-incriminating testimony is under oath and on the record, and can be used in a criminal prosecution. Which means any person engaged in any sort of criminal activity with half an active brain cell will take the 5th when asked anything related to it. That can make it tricky to authenticate evidence obtained illegally, and it has to be authenticated to be admissible. There are other ways to authenticate evidence beyond testimony, but I don't know enough about the facts to know if they apply here. Maybe somebody else does.

    Beyond that, the government is not liable for policies or regulations they put in place based on scientific data even if it turns out to be faulty. Science changes and makes new discoveries all the time, policies are based on those discoveries. The people who rely on scientific data to make governing decisions have to be protected from liability for their official decisions so they can do their jobs. Otherwise, we'd still be teaching about the flat earth in public schools and medicare would be paying for leeches.

    Hope that helps a little?
     
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  3. strollingbones
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    strollingbones Diamond Member

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  4. Baruch Menachem
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    Baruch Menachem '

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    [quote="Goldcatt, the cute one" ]Beyond that, the government is not liable for policies or regulations they put in place based on scientific data even if it turns out to be faulty. Science changes and makes new discoveries all the time, policies are based on those discoveries. The people who rely on scientific data to make governing decisions have to be protected from liability for their official decisions so they can do their jobs. Otherwise, we'd still be teaching about the flat earth in public schools and medicare would be paying for leeches.
    [/quote]

    Well , in my opinion, when it comes to paying for leeches, we still are..... Grumble grumble

    So what it comes down to is that in the case of the emails, the judge will have to decide if the EPA's regulation is based on deliberate scientific fraud or not. Since this news is out there, it sort of cuts down on the concept of good faith for the decision making. The EPA is going to have to add more information to its basis.
     
  5. CrimsonWhite
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    CrimsonWhite *****istrator Emeritus Supporting Member

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    The exclusionary rule does not apply in civil cases. Even in criminal cases, it can be applied at a judges discretion. The High Court has ruled on this on numerous occasions. Michigan v. Hudson comes to mind. There are many limitations on the rule such as; evidence obtained illegal by a third or private party is admissible. For instance in the case of Elkins v. United States illegal evidence was collected by a state and turned over to the federal government and therefore deemed admissible. Also, if the court finds that the evidence would have been found later, by legal means, then it can be deemed admissible.

    So to answer your question, it all comes down to the judge and how far the defendant would want to take it. In the case of the porn, that evidence would stand, as it was collected by a third party and turned over to the police. As for the climategate e-mails, as stated before, exclusionary rule does not apply to civil court, so it would absolutely be able to be used in a lawsuit.
     
  6. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    Well , in my opinion, when it comes to paying for leeches, we still are..... Grumble grumble

    So what it comes down to is that in the case of the emails, the judge will have to decide if the EPA's regulation is based on deliberate scientific fraud or not. Since this news is out there, it sort of cuts down on the concept of good faith for the decision making. The EPA is going to have to add more information to its basis.[/QUOTE]

    Honestly? I couldn't tell you. I haven't been following it and don't know the facts. It's hard to sue the government for official decisions though, unless there's some alleged unconstitutionality that passes the giggle test.
     
  7. Baruch Menachem
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    Baruch Menachem '

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    One would think, reading the stuff I do from hyperventilating folks, that it was absolute.

    Thanks for the help on this.
     
  8. CrimsonWhite
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    CrimsonWhite *****istrator Emeritus Supporting Member

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    Well , in my opinion, when it comes to paying for leeches, we still are..... Grumble grumble

    So what it comes down to is that in the case of the emails, the judge will have to decide if the EPA's regulation is based on deliberate scientific fraud or not. Since this news is out there, it sort of cuts down on the concept of good faith for the decision making. The EPA is going to have to add more information to its basis.[/QUOTE]

    Goldcatt obviously spent more time on answering than I did. :lol: She did a good job explaining the rule and your conclusion is correct. On the question of whether or not the e-mails would be admissible, on the surface, by law they absolutely would be. However, there are 5th amendment implications that I would have dig into to give you a solid answer.
     
  9. CrimsonWhite
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  10. CrimsonWhite
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    CrimsonWhite *****istrator Emeritus Supporting Member

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