# Not allowing items into evedence--is it right?
**URL:** https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264
**Category:** Great Debates
**Created:** [January 17, 2003, 6:08pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264 "2003-01-17T18:08:07Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 17, 2003, 6:08pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/1 "2003-01-17T18:08:07Z")
One often hears (ok, mostly on TV, but it must happen some of the time) of a judge deciding not to admit a piece of evidence into a trial. How can it possibly be right to expect a jury to deliver a fair verdict if you withhold evidence from them?
I can understand in situations where the evidence was gathered illegally, that there must be some form of deterrent, so why not bring the cops up on charges of illegal gathering of evidence? Make the penalty stiff to convince others that it’s not a good idea.
It seems to me that even if evidence is gathered illegally, it is still evidence, and should not be ignored. IMO the only way to insure a just outcome is to take all the facts into account.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 17, 2003, 6:19pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/2 "2003-01-17T18:19:40Z")
There are many rationales to the exclusion of evidence.
I suppose they boil down into two main areas, however. One is the prophylactic remedy contemplated in the OP - by removing the incentive to gather illegal evidence, the courts help ensure that very little illegal evidence-gathering is done.
The second area is the exclusion of evidence that may lead the fact-finder to draw impermissible inferences. For example, if an accused has multiple child sexual abuse convictions, but is now being tried for arson, a jury might well conclude that he’s simply a bad guy, who deserves to be punished for something. Since the fact that he’s been convicted of one crime has absolutely no bearing on whether he commited the other crime, this type of evidence is typically excluded.
Which type of exclusion did you wish to debate?
- Rick
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [January 17, 2003, 6:23pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/3 "2003-01-17T18:23:37Z")
I agree with you that the exclusionary rule is a bad idea (though I disagree with your suggested replacement deterrent). I’ll spell out the two main benefits argued in favor of the exclusionary rule, just to get the ball rolling.
1. Evidence collected illegally is considered more likely to be suspect. If proper procedures are not followed, it may mean that the evidence was planted, etc.;
2. While we want to deter illegal gathering of evidence, we don’t want to deter police performing their duties. If the police officer risks jail time if he/she collects evidence in a way that later is determined to be illegal, the cop is very unlikely to collect any evidence until s/he knows that every legal i is dotted and t is crossed. Much admissible evidence would be lost that way.
The exclusionary rule provides a compromise. The police will be deterred from illegal collection by the fear that the guilty party will go free, but at the same time is not so deterred (by the fear of prison), that they won’t continue to properly perform their duties.
Sua
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### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 17, 2003, 6:29pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/4 "2003-01-17T18:29:39Z")
IMO, past convictions hold no relevence to any current case, even if they are the same crime: Just because Joe Blow raped some kids in the past doesn’t mean he raped this one. Thus, past convictions are not evidence, and should be excluded. Each crime should be tried only on the facts of **that case**
Now, if Joe is convicted of this rape, past convictions **of the same crime** certinly could enter into the sentencing.
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### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 17, 2003, 6:37pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/5 "2003-01-17T18:37:07Z")
**Sua** : To combat number one, the council would be at liberty to disclose the method of gathering evidence, and bring into question it’s validity.
As for number two: Every legal i and t should be getting close scrutny anyway, so your point is moot. I fail to see how permisable evedence would be missed by following the rules that they are sopposed to be following anyway, currently, if they aren’t following the rules (dotting their i’s), the evidence is excluded anyway.
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### Author:  [@Realhoops](https://boards.straightdope.com/u/Realhoops)
#### Post date: [January 17, 2003, 6:43pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/6 "2003-01-17T18:43:58Z")
> [@](#):
>
> \*Originally posted by Guy Montag \*
> IMO, past convictions hold no relevence to any current case, even if they are the same crime: Just because Joe Blow raped some kids in the past doesn’t mean he raped this one.
I know you said that was your opinion, but I just wanted to point out that in practice this is not exactly correct. In most jurisdictions, AFAIK, evidence of past crimes may be admissible if it is shown that they bear, for example, a particular “signature” or “m.o.” that makes it more likely that Joe Blow also committed the present case. For example, if Joe Blow has been twice convicted before of going to AA meetings and luring women to a cheap hotel next to a particular greasy burger joint and then raping them, and if the facts of the present case are that the victim was lured from an AA meeting to a cheap hotel next to the greasy burger joint, well then the court may find the past crimes bear a particular signature and evidence of them may be admissible. In the jurisdiction I’m in there has to be a hearing on the admissiblity of such evidence outside the presence of the jury where the court determines the admissibility.
As for the “exclusionary rule” portion of the OP, I think non-lawyers often have a hard time understanding how the rule works and why it was implemented in the first place. Although I recognize the possible problems with the rule, I think it presents one of the best compromises I’ve seen so far. It does provide a reason for police not to act improperly, but balances out by allowing them to act in good faith discharge of their duties without fear of personal reprisal. Additionally, there have been numerous “exceptions” carved out for specific situations (such as inevitable discovery, plain view, etc.) so that the exclusion of evidence is generally only for the more clear violations of proper procedure.
I can’t tell if you wanted to get into the exclusion of evidence on other grounds, such as the general evidence rules of relevance, hearsay, etc., but that’s a whole other, albeit somewhat related, can of worms.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 17, 2003, 6:52pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/7 "2003-01-17T18:52:59Z")
> [@](#):
>
> \*Originally posted by Guy Montag \*
> \*\*IMO, past convictions hold no relevence to any current case, even if they are the same crime: Just because Joe Blow raped some kids in the past doesn’t mean he raped this one. Thus, past convictions are not evidence, and should be excluded. Each crime should be tried only on the facts of **that case**
> Now, if Joe is convicted of this rape, past convictions **of the same crime** certinly could enter into the sentencing. \*\*
What **Realhoops** said.
In general, evidence of past crimes is not admissible to show that an accused committed the present crime. As **Realhoops** points out, it _is_ admissible to show a common plan, scheme, or motive.
It’s also admissible to show absence of mistake. For example, the previous child molestation charges might be relevant to rebut testimony by the accused that his touching of the child in the present case was an accident, instead of a deliberate grope. A person who claims that he didn’t know he was getting extra food stamps could be impeached by the showing that he’s already been convicted once for food stamp fraud, and so on.
Finally, many jurisdictions permit previous convictions to be used to impeach credibility. In other words, an accused testifying in his own defense may be asked if he’s been convicted of a felony. This may apply only if the felony relates to dishonesty, or it may apply to all felonies, and the fact-finder may or may not hear what the exact crime was – all depending upon where the trial is taking place.
- Rick
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### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 17, 2003, 6:58pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/8 "2003-01-17T18:58:11Z")
> [@](#):
>
> I know you said that was your opinion, but I just wanted to point out that in practice this is not exactly correct. In most jurisdictions, AFAIK, evidence of past crimes may be admissible if it is shown that they bear, for example, a particular “signature” or “m.o.” that makes it more likely that Joe Blow also committed the present case. For example, if Joe Blow has been twice convicted before of going to AA meetings and luring women to a cheap hotel next to a particular greasy burger joint and then raping them, and if the facts of the present case are that the victim was lured from an AA meeting to a cheap hotel next to the greasy burger joint, well then the court may find the past crimes bear a particular signature and evidence of them may be admissible. In the jurisdiction I’m in there has to be a hearing on the admissiblity of such evidence outside the presence of the jury where the court determines the admissibility
But, you see **Realhoops** even m.o. is not evedence that Joe commited the crime being currently tried: It could just as easily be a copycat. As such, it should not be permitted any more than the fact that joe likes to rent porno movies and always returns them late. If it is not a fact pretaining to the crime currently being tried, it is not evedence that Joe commited said crime.
Eyewitnesses (and hearsay, etc), although not truly fact in the dictionary sense of the word, should be treated as “gap fillers” to flesh out the story painted by the facts. Anywhere that their story doesn’t jive with the facts should be pointed out to the jury.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [January 17, 2003, 7:07pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/9 "2003-01-17T19:07:23Z")
The fact that gunshots is heard, and a witness turns around to see the accused standing over the victim’s body with a smoking gun is not evidence either. It could just as easily have been that the real shooter committed the murder, then pressed the gun into the dazed onlooker’s hand and ran off, leaving the hapless onlooker charged with the crime.
Right?
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [January 17, 2003, 7:12pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/10 "2003-01-17T19:12:52Z")
> [@](#):
>
> \*Originally posted by Guy Montag \*
> As for number two: Every legal i and t should be getting close scrutny anyway, so your point is moot. I fail to see how permisable evedence would be missed by following the rules that they are sopposed to be following anyway, currently, if they aren’t following the rules (dotting their i’s), the evidence is excluded anyway.
My point is moot. Jezus, dude, if you are going to arrogantly apply the wrong analysis, at least don’t use terms you don’t understand. “Moot” means “2 : deprived of practical significance : made abstract or purely academic.”
Self-evidently, is point is not derived of practical significance, made abstract or purely academic because the police don’t always give close scrutiny to the legal i’s and t’s, and very often cannot do so. One example:
A cop knocks on the door of a known drug dealer and announced himself. The cop hears the toilet immediately start to flush - the guy is very likely flushing the evidence. Should the cop go back to his car to pull out the law books to determine if he is now allowed to knock down the door?
If he went down to the car, _then_ the point would be moot: the evidence is flushed. :rolleyes:
Furthermore, hotshot, the very fact that every year appellate courts (and most years, the Supreme Court) takes up cases on the exclusionary rule demonstrates that giving ‘close scrutiny’ to the law won’t completely solve the problem, **because the law keeps changing.**
Sheesh. I started this debate out on your side, **Guy.** I still am, but you’re making it harder.
Sua
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### Author:  [@blowero](https://boards.straightdope.com/u/blowero)
#### Post date: [January 17, 2003, 7:25pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/11 "2003-01-17T19:25:11Z")
> [@](#):
>
> \*Originally posted by Guy Montag \*
> \*\ ***Sua** : To combat number one, the council would be at liberty to disclose the method of gathering evidence, and bring into question it’s validity.
> As for number two: Every legal i and t should be getting close scrutny anyway, so your point is moot. I fail to see how permisable evedence would be missed by following the rules that they are sopposed to be following anyway, currently, if they aren’t following the rules (dotting their i’s), the evidence is excluded anyway. \*\*
They DO have to follow the rules. I think Sua’s point was that if you make the penalty TOO strict, police will tend to err on the side of caution and not be as diligent as they should in gathering evidence. You are making an assumption that all rules are absolute, black-and-white affairs and that there is no gray area between “following the rules” and “breaking the rules”. I don’t think ANYTHING is that black-and-white.
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### Author:  [@blowero](https://boards.straightdope.com/u/blowero)
#### Post date: [January 17, 2003, 7:28pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/12 "2003-01-17T19:28:06Z")
Oops, I see Sua snuck in a response ahead of me. I guess that renders mine moot.😉
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [January 17, 2003, 7:35pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/13 "2003-01-17T19:35:30Z")
> [@](#):
>
> \*Originally posted by blowero \*
> \*\*Oops, I see Sua snuck in a response ahead of me. I guess that renders mine moot.😉 \*\*
Frickin A. Doesn’t ANYONE around here know what moo…
Oh. Pretty smilie.
Sua
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### Author:  [@Realhoops](https://boards.straightdope.com/u/Realhoops)
#### Post date: [January 17, 2003, 8:24pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/14 "2003-01-17T20:24:34Z")
> [@](#):
>
> \*Originally posted by Guy Montag \*
> \*\*But, you see **Realhoops** even m.o. is not evedence that Joe commited the crime being currently tried: It could just as easily be a copycat. As such, it should not be permitted any more than the fact that joe likes to rent porno movies and always returns them late. If it is not a fact pretaining to the crime currently being tried, it is not evedence that Joe commited said crime.
> Eyewitnesses (and hearsay, etc), although not truly fact in the dictionary sense of the word, should be treated as “gap fillers” to flesh out the story painted by the facts. Anywhere that their story doesn’t jive with the facts should be pointed out to the jury. \*\*
I have to respectfully disagree with you here **Guy**. I think it most certainly is “evidence.” It may well be that it’s not “relevant” evidence in certain cases; it may well be that its prejudicial impact substantially outweighs its probative value in certain cases. That, however, does not mean it isn’t evidence. I think what you’re really trying to say is it shouldn’t be admissible, not that it isn’t evidence.
As for whether it should be permitted or not I think I’m getting confused about where you stand. On the one hand you want to say that nothing _except_ facts about the immediate crime should be allowed. On the other hand, you say that every single fact about the immediate crime, regardless of how reliable or how obtained _should_ be allowed. So in other words, under your proposed evidence rules it would be acceptable to allow Sally to testify that she overheard some woman at the local diner saying that her neighbor’s uncle was told by a little boy shining shoes in Time Square that his dad heard from his mom’s sister’s hairdresser that **Guy** committed some crime. It would not, however, be acceptable to allow evidence that **Guy** , who is testifying on his own behalf and denying everything, has previously been convicted of perjury 53 times, including 27 times in prosecutions for crimes committed in the exact same very unique and unusual manner.
As for me, I much prefer the current system where hearsay is generally inadmissible because of its unrealiability but where evidence of prior bad acts may be admissible for certain specific purposes, so long as the court is first satisfied of the evidence’s value and reliability.
Oh, and **Sua** , just to add to the slight hijack concerning “moot,” my dictionary also says that “moot” means, among other things, “to discuss from a legal standpoint” and “open to question; debatable.” I would never in my wildest lexicography dreams have imagined that moot could be defined that way. Of course that’s probably moot given the way the term is commonly used and understood, right? 🙂
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### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 17, 2003, 10:30pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/15 "2003-01-17T22:30:38Z")
To quell any minor arguements, this is the definition I’m using:(from [dictionary.com](http://dictionary.com))
> [@](#):
>
> moot
> adj.
> 1. Law. Without legal significance, through having been previously decided or settled.
> 2. Of no practical importance; irrelevant.
take note of #2.
As for what is evidence and what is not: I was operating on the scientific meaning of the term. That is, facts that lead one to a conclution. Apparently I am alone in this definition, as I can’t find it in any dictionary. My mistake. Substitute “facts” for “evidence” as needed in my previous posts.
**Realhoops** : I’m saying that they should be allowed to present any facts (padded with eyewitnesses–don’t know what I was thinking with the hearsey thing, forget that) directly pretaining to the case at hand, and nothing else.
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### Author:  [@sailor](https://boards.straightdope.com/u/sailor)
#### Post date: [January 17, 2003, 10:59pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/16 "2003-01-17T22:59:03Z")
\>\> past convictions hold no relevence to any current case, even if they are for the same crime
I disagree with this very much and I believe this is one of the causes for the “revolving door”. I believe it is _very_ relevant as it shows the accused has a tendency to commit that crime.
Suppose a person is accused of stealing and you are in the jury. Are you telling me the fact that the guy has (a) never stolen before or (b) stolen often, this information has no bearing when trying to decide the likelihood that he committed this particular crime? I don’t buy it. I know it’s the law, but I don’t buy it.
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### Author:  [@Guy\_Montag](https://boards.straightdope.com/u/Guy_Montag)
#### Post date: [January 18, 2003, 12:56am UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/17 "2003-01-18T00:56:18Z")
Yes, **sailor** , that is what I am saying. Buy it or not, it’s true.
I say so because: When convicted, I had no prior criminal record. this fact has nothing to do with the fact that I committed the crime I was tried for. If I was ever brought to court for robbery again, I would be innocent (I will never steal again), and my prior conviction has nothing to do with any future case brought against me.
If the jury takes the defendant’s past into account, it will distract them from the task they are there for: to determine if he is guilty of the crime set before them. As **bricker** said above, they might simply conclude he is a bad guy and needs to be punished for _something_, thus he is being punished again for his past crimes, rather being tried for a current one.
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### Author:  [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)
#### Post date: [January 18, 2003, 3:37am UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/18 "2003-01-18T03:37:04Z")
> [@](#):
>
> \*Originally posted by SuaSponte \*
> \*\*Frickin A. Doesn’t ANYONE around here know what moo…
>
> Oh. Pretty smilie.
>
> Sua \*\*
It’s a _Friends_ reference. A “moo” point is the opinion of a cow and not deserving of any consideration. I thought it was pretty funny.
**Guy** , please remember that what you see on TV has precious little to do with the reality of trying law suits. The exclusionary rule has been around for a long time, it was agonized over when it was put into effect and it has been debated ever since. **Sua’s** disagreement with it notwithstanding, it’s likely to be around for a long time to come. There is, it seems to me, a fair argument that without the rule the whole array of Constitutional rights becomes, if you would, “MOO.”
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### Author:  [@blowero](https://boards.straightdope.com/u/blowero)
#### Post date: [January 18, 2003, 8:11am UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/19 "2003-01-18T08:11:57Z")
Is that like the statue of limitations?
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [January 18, 2003, 3:47pm UTC](https://boards.straightdope.com/t/not-allowing-items-into-evedence-is-it-right/149264/20 "2003-01-18T15:47:35Z")
I thought about rendering an opinion in this thread, but after reading the results, I think I’d prefer to “stand moot” 😃
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