There are other ways to deal with illegal searchs- but they will have worse results than the exclusionary rule.
Have the police be subject to lawsuits, fines or prosecution for illegal searches Now the police will use too much restraint in performing searches. An officer can never know for certain what a judge will decide a month from now about the search performed today. Maybe he had a search warrant, but a judge later decides it should not have been issued. Maybe there hasn't been any case law fitting the precise circumstances of this case, and no one can be sure in advance how a judge will rule. And if the penalty is monetary, maybe the officer will decide it's worth the penalty to get the criminal off the street, or the police union and the community will raise the necessary funds because *they* think it's worth it to get the criminal off the street. The only real disincentive is to make the illegal tactics pointless- which is precisely what the exclusionary rule does.
Apos, all your responses resolve to the following:
I don’t agree with you, and I am not offering any strong argument against what you say other than that I don’t believe it to be valid.
That’s not debate, that’s a waste of people’s time. I and others have offered clear, cogent reasoning for the way things are. You simply reply: I don’t think that’s valid: I believe people should be able to hear everything. That sort of non-response I won’t bother to debate, and, from the looks of the thread, nor will anyone else. If you want a real debate, I suggest you actually offer evidence and or true argumentation to your efforts.
I’ve already offered plenty of reasoning, and I did, in fact, offer reasoning in my reply. Anyone can CLAIM I didn’t, without actually responding to what I said, but so what? The bottom line is: did you ever really address the idea that people make better choices when information is not restricted? No. Did you ever really justify your belief that its wrong to speak about relevance in terms of percentage? No. Did you ever explain why we can trust juries and not trust them? No. In all of these cases you started out as if to do so, but then never got past the sneering, culminating in the bizzare ramble about gestalts that sounded like you were copying it out of some textbook without any sense of why or how it related to refuting my point.
The reality is, as your post clearly lay out, you believe you are simply wise and informed by the wise (the amorphous “we”), and so it requires nothing more than to repeatedly assert that I’m wrong because “we don’t do it that way” and then simply restating the very arguments I’ve criticized. That strikes me as remarkably unwilling to actually think about the subject.
Again, this is just a bare claim: has anyone actually tried these alternatives?
Will they? That doesn’t seem to follow at all. The hallmark of a good incentive system is that we can tweak it until we reach whatever you believe i the right level of “restraint” for police to operate with. So we can essentially pick the level we want.
Again, you are raising objections that presume that there is no way to correct for them. I don’t see how excluding evidence is the only “real” disincentive: that seems quite literally a false statement and further, I think there are plenty of reasons that the exclusionary rule isn’t a very good disincentive in practice: not to mention that it creates all sorts of perverse incentives for both criminals and officers.
The point is that we want two good things: less police violating people’s rights, and less evidence thrown out at trial. There is no reason that we HAVE to link these two things together, and there may be ways to achieve both better than the exclusionary rule accomplishes.
Ultimately, it’s like asking why the President is trusted to be commander in chief of the armed forces, but not trusted to allocate funding to maintain them – the Anglo-American system is built on institutions with limited powers that simultaneously complement and constrain each other.
I don’t think that argument is a very good analogy at all. What we require of juries is that they provide findings of fact based on evidence. The whole question I’m raising is WHY some facts are treated as the bailiwick of judges and some of juries, and the problems that raises for juries given the insights into evidence that our society recognizes in virtually ever other walk of life. Simply stating that they constrain each other isn’t a particularly on point response. Juries aren’t tyrants, they are an entity we hope to best use to achieve a particular task. I happen to think that the reasons given for them being unreliable in certain cases can’t so easily be limited to just that case, and I’ve given plenty of reasons why that I don’t feel have been addressed with anything other than “they just don’t” or “juries are awesome!”
You claim that there are multiple ways to shorten the trial process without limiting access to evidence. Ok, offer one. Then show how it can be made efficient, and how the offer of evidence can be limited without resort to some method equally arbitrary in determining what will and won’t be offered to the jury?
The lawyers are presenting their client’s case, not their own case. The lawyers pass this cost to the clients. Suddenly, it’s even harder for poor or low-middle income people with good but complex cases to have reliable access to public courts.
I will try to filter out the talk of monopolies and whatnot in an effort to bring the conversation back to jury trust. In response to the OP, we have seen:
Why are they irrelevant as a matter of law?
Again, why can’t we trust jury’s to hear all the evidence and let them decide relevance? It seems inherent in this quote that juries cannot be trusted due to “unavoidable prejudice.”
At some point, the state has decided that evidence becomes overly prejudicial and must be kept from a jury, because, at some level, the state believes juries are too stupid to sort through it, posing an unreasonable risk of harm to one or more litigants. On what basis does the state define that level other than “whatever the legislature and court decides.” What does this implicit condemnation of juries’ intelligence say about the trustworthiness of juries generally?
Why is certain evidence deemed unfair? Because a jury might be unduly persuaded by it… because juries izz to stoopid.
Yes, but this requires the state to pre-determine relevance, removing the determination from the hands of the jury… the heralded fact-finder. The state is saying it trusts juries to sort through testimony of conflicting medical experts on complex medical issues, for example, but does not trust a jury to decide that a rape victim’s sexual history does not usually have bearing on whether a woman was raped.
Inherent in your statement is an assumption that a jury is likely to deprive someone of freedom based upon innuendo (i.e., at some level juries izz too stoopid to be trusted to do what’s right).
Interesting perspective. Not sure what to do with that one yet.
So, limiting evidence should be based not on a pre-determination of relevance, but on judicial efficiency?
Translation… juries izz to stoopid to figure that out.
Can you distrust evidence itself or do mistrust what a jury might do with that evidence?
I guess this really highlights the arbitrary levels of jury trust in our system.
These objections are not particularly useful. For instance, to avoid that problem, the judge can simply set a fixed budget and give it to the lawyers in equal amount, who then pay it back to the state. Or any other number of incentive systems. The point is to care about getting the incentives right, and so you work out some system that tries to do so.
There is an incentive system no matter WHAT you do: it just tends to be a fairly arbitrary and often fairly biased one.
I’ve said again and again that juries do well for the limited role they are given: to weigh relevant facts. Boiling my point down to “jireez iz 2 stoopd” is an imbecilic retort. Actually, it’s pretty ironic that this is exactly the sort of childish evidence that should not have any bearing in laying out a rational, well-reasoned case either for the proposition at hand or for depriving someone of their freedom.
I can’t figure out if you are arguing for or against unfounded innuendo being used to convict someone. Are you saying that juries are so dependable that they will always disregard any evidence that does not withstand objective scrutiny? Are you saying that it would be okay to use evidence of dubious authenticity against someone? Are you saying that juries should also judge facts of the character of the defendant along with the facts of the case? Please explain. It would be more helpful for me to understand your views on this matter than to have another barrage of “jureez be so dum.”
You’re a defense attorney. I, the prosecutor, have statistics that show that your young, uneducated, low income black male client is more than ten times more likely to have committed the violent crime he is accused of than the only other suspect, a high income white male. Should I be allowed to enter that into evidence?
More seriously, I guess I’m still thinking about it. I am trying to reconcile the idea that the state has decided that, on the one hand, juries cannot be trusted to tell the difference between popcorn and meat, and on the other hand, the state trusts juries to distinguish between skirt steak and prime rib.
How to we legitimately say a jury should be prohibited from hearing innuendo without drawing the conclusion that juries should be abolished?
We know that juries cannot always be trusted to deem certain matters irrelevant because juries are subject to passions and prejudices that can override rational thought and a solid application of law and fact. Given that, it seems appropriate to exclude these matters from trial as a matter of law. The problem I’m having is deciding how that logic does not lead to a condemnation of juries generally.
Perhaps the answer is that it is not proper to draw conclusions from the specific to the general. In other words, just because is jury is likely to be incompetent at one specific thing does not mean a jury is generally incompetent at all things.
I’ll thow this in, too: in addition to my statistical evidence, I have my professional opinion. I want to tell the jury I have been prosecuting for 40 years, and also briefly served as a judge. It is my opinion that never in all my years practicing I have never seen a more open and shut case, or a more guilty client. Furthermore, I want it expressly included in the jury charge that they are allowed to consider my opinion in deliberation, and if they wish, convict solely based upon it.
Because that would exclude what I see to be a reasonable middle: juries should hear relevant facts that were collected in a lawful manner. Whether juries are good isn’t a binary equation, it is a balancing act between many competing interests: justice, limits on state power, fairness to defendants, and so on. What juries should get to see isn’t a scientific calculation as this Landsburg fellow seems to imply, it’s probably more of an ethical judgment of weighing multiple principles to come to what is really a political compromise on what roles juries should and should not fill.
I think one must distinguish between deficiencies in an agency (like juries) and deficiencies in human nature. Of course people can be swayed by passions – that’s part of human nature. But it is possible to insulate an agency to a limited extent from certain human failings. We don’t put the power to prosecute and to judge in the hands of one person, for example, we also divide the power of government into separate branches.
So we can say with a straight face that a legislature generally does a decent job at their responsibilities, but we wouldn’t want to invest all governmental power in a legislature. That doesn’t mean in my book that legislatures are not to be trusted nor are they incompetent – also I suppose some may see it that way – but they are limited in their purpose for a reason. I think this example is pretty reasonably extended to juries, though the purpose is slightly different.
Why not? Why not that, and then admit DNA evidence which works on essentially the SAME principle of statistical likelihood?
Doesn’t that factor into the probability of various witness claims and how likely the jury is to actually convict an innocent person and or release a guilty one?
Or take it another way: we have pretty good reason to think that you don’t NEED to present that statistical evidence. The jury ALREADY internalizes it and that, in fact, explains why juries seem far more willing to convict African Americans for the same crimes as they are whites? Isn’t that a pretty darn big strike against juries, by your own logic?
Again, lets put me on a jury. I come in and find that the defense attorney is Alan Dersowitz, who is renowned for defending what are generally obviously guilty clients. Why is THIS information essentially part of the trial, while other information is not?
You keep raising examples in which you imagine some prejudicial information being allowed in without addressing the complete picture: that this one piece is not the ONLY piece allowed in.
My point is that there is a lot of prejudicial information allowed in no matter what, but that by and large its going to be arbitrarily biased one way or another. So you are getting the worst of both worlds anyway.
And how would this shorten anything? The cost would simply be passed on to the client, and rich clients would be even MORE at an advantage over poor clients. And what do you do about indigent defendants?
Explain how this would make the system work better, please?