The exclusionary rule stands for the principle that evidence obtained via an unlawful search cannot be used in trial. Any “forbidden fruit” obtained via the search is also out.
The NYT has an article today suggesting that an upcoming case may limit or overturn Mapp v. Ohio. It is a practice unique in the world, and there are substantial arguments against it.
I, for one, am horrified at the thought. Growing up in a post-Warren world, it’s one of those things I take for granted as a cherished American ideal. That it has roots to the turn of the century (I think Mapp applied it to the states as well) bolsters this, but I recognize that it is not centuries old.
While there are rational arguments against it, I don’t believe any of them rise to the level of outweighing the benefit of strict enforcement of rights and practices on the police force. While this is a rare instance of non-Bush related shrinkage of our civil rights (the existence of which isn’t necessarily germane to this debate, so if you disagree, please just accept this as merely my opinion), I think it is extraordinarily important in the current climate of fear and investigatory expansion.
I don’t get why this is a slightly right-leaning issue. Cries of “Law and Order” aside, this would be a vast expansion of government power, severely undercutting core rights and expectations of privacy and security. While there may be growth in the professionalism and training of police forces, we have not, nor do I think ever will, be at such a level where unlawful searches would be a rarity.
The article had one very good point. The exclusionary rule only protects criminals who have their rights violated, it does nothing to protect innocents who have their rights violated.
If the police violated someone’s rights, then that should be dealt with as an individual situation, with a system that allows criminals and innocents alike to get some sort of remedy. If the evidence they gathered is reliable and trustworthy, even when the method used to gather it is considered, then it should be allowed. If the evidence is rendered unreliable because of the way it was gathered, then disallow it.
I don’t understand why the lack of protection for innocents who have their rights violated is relevant. It is there to protect the violation of rights, not redress a wrong. If anything, this argument suggests that the rule should be extended to encompass such issues. Furthermore, my (innocent) rights are protected by the rule. The police may think I’m running an illegal Chihuahua farm (I’m not), but they won’t bust down my door to just see, since doing so would be fruitless anyway. Remove that protection, and the line between what they will and won’t do shifts accordingly.
I also think the key phrase in the above is “rights violated.” Again, I grew up in a post-Warren world, so perhaps our outlooks are different. Rights are rights are rights are rights – a citizen (let’s not segue to who has the rights), irrespective of their status, has rights. ISTM that saying (I think this is what you’re implying, forgive me if I’m misinterpreting you) that since it’s a criminal’s rights that have been violated, it’s ok. The exclusionary rule protects everyone’s rights.
So I’m not clear how this would work. Suppose I’m on death row because the police broke into my house without a warrant and found incriminating evidence (assume for the sake of argument that it was important evidence but nothing as damning as the victim’s severed head). What would I do, sue them for damages? And hope that my estate would benefit once the case finally came to trial?
The protection against unlawful searches and seizures goes all the way to the Constitution, does it not? Other than preventing the use of evidence obtained that way, what other recourse does this offer to the ordinary citizen? What sanctions against police organizations are otherwise imposed? (these are genuine questions, not rhetorical; I really don’t know.)
Roddy
Note that while the right is in the Constitution, the remedy is not. I agree with you that other methods of protection are inadequate, but it doesn’t have to be this way.
That creates temptation for police for [del]violate rules[/del] “make mistakes” to gather evidence. If improperly obtained evidence is automatically inadmissible temptation is removed. Also prosecutors (most of whom are politicians) would then be put in the akward position of relying on such evidence in court while having to punish the officers for obtaining it. And in our system of justice a criminal is not a criminal until a swon panel of 12 citizens say he is, until then he’s an innocent man.
Pretty much what I was coming in to post. And I’m skeptical about how well cops who mess around with protocols on collecting evidence are going to be “remedied.” Throwing out the exclusionary rule has the potential to get very fucked up very quickly.
I’m no lawyer, and I want to see the bad guys go to jail as much as the next guy, but this is one of the rules that separates the good governments from the bad governments.
I grew with Dirty Harry movies and other forms of entertainment complaining about Evil Scum getting off on technicalities. That “me” would dump the excl rule immediately.
As I have aged, I am STILL a law & order type, but now I have a heavy distrust of too much power in the hands of any level of government. I LIKE that the cops are limited. I HATE the video cameras popping up everywhere. I would NEVER dump this rule. You either get the evidence legally, or it does not exist in the eyes of the court.
Scalia shocks me more and more. While his conservative side tended to run counter to my more liberal leanings I respected him as a very smart guy with well considered opinions. But more and more my faith in him as an impartial justice is shaken as he looks more and more to want to push a conservative agenda.
Reading that article my jaw dropped at his reasoning that the exclusionary rule should be limited is appalling. He claims since police departments are more professional now the need for the exclusionary rule is now less?
I would like a cite that police departments are any more professional and any less susceptible to corruption than they once were.
I would maintain part of being more professional (if they are) is due in large part to the exclusionary rule among other things (e.g. cell phone cameras everywhere ). Police know if they want to get the bad guy they need to do things right. With the threat gone that the guy will go free if they violate his constitutional rights what compels the police to try and abide by it? Just cuz they are nice guys when they want to get you?
I can imagine things like profiling coming back in a big way. Why not? Won’t matter what they stop you for.
Then Scalia says, "As far as we know civil liability is an effective deterrent.”
As far as they know? :eek:
So a Supreme Court justice is ready to gut a constitutional protection on conjecture? Do they have proof to back this up? Does he answer how you sue a police officer over currently built in protections protecting them from just that? Will Scalia let the state pick up the bill for my civil suit if I cannot pay it and no one is willing to take it on contingency? How much can you expect to get out of a cop for violating your constitutional rights? Is it fair to ruin his family’s life as you bankrupt him for his actions? Or will the state pay the damages (so basically the taxpayer pays for the police indiscretion)?
Just amazing…
EDIT: As an aside I was subjected to a clearly illegal search before (there is zero question about this). I allowed it to continue rather than raise a fuss because that usually causes you a lot of hassle with the police. But I had done absolutely nothing wrong and wanted to get out of there to my waiting girlfriend. So don’t tell me this now more professional police force is somehow immune to these kinds of shenanigans even today. Without the rule I shudder to think what it could devolve to.
Because the Exclusionary rule is a remedy for a Constitutional protection. As such, there is no defined remedy for him to disagree with. Furthermore, at the time of the Framing (Constitution, that is), the rule didn’t exist.
I might be in favor of the elimination of it if we could find a good alternative to the rule.
What else could be done to protect privacy? You can’t criminally punish the cops because they will simply claim a mistake and a lot of good that does the harmed party.
No, a criminal is not punished until a jury says the state has the right to punish him. Whether or not he committed the criminal acts he’s accused of is a matter of historical fact, and doesn’t have a damn thing to do with anything 12 people have to say about it.
Somehow, other countries manage to have functioning legal systems without having to throw out 77lbs of cocaine because the officer who pulled over the car forgot that it didn’t actually need a front license plate. I think that we can come up with a system of our own that allows us to use clear and convincing evidence of wrongdoing that was gathered mistakenly without turning the country into a police state.
Supposedly they’re turning things around with the new chief and such, but the “blue wall of silence” is pretty deeply ingrained. I think the exclusionary rule is essential.
Exactly. The exclusionary rule does protect the rights of the innocent, by creating a huge disincentive for the police to violate their rights. Police don’t deliberately conduct unreasonable searches because they know it would be a waste of time. You can argue that evidence from accidental mistakes should be allowed, but then you raise the issue of how do you prove that the mistake was an accident, and not an “accident” of the variety.
Other countries supposedly punish the police when they violate suspects’ rights, but I’m very skeptical that any sort of meaningful penalties ever get handed out, except in the most outrageously egregious cases.
Well, to go on with your hypothetical, I think that in a free country, an agent of the government should know whether or not I must have a front license plate before he detains me and my family.
It’s just a minor traffic stop, some might say. But in today’s world it means to be careful and be in fear of some 19 year old trigger happy goofball.
I have a right to travel peacefully and not under the watchful eye of big brother. The exclusionary rule is just a symptom if cops are truly ignorant of basic things such as this.
But in practice, you know this isn’t true. If you simply amended the exclusionary rule to front plate violations, then how many “mistake” stops would happen because of this in your opinion?
This was the basis of the Rehnquist argument against exclusion - that the police should discipline the offenders. The analysis I saw was similarly doubtful of whether this would happen. It would be a brave police chief indeed who fired an officer for improperly obtaining evidence that convicted a pedophile, for example.
I’d also agree with the views that exclusion does protect all people. The violation is more than just the evidence being used, it is the search itself, and the constant threat of the search. By removing the incentive for illegal searches, the exclusionary rule serves to remove the incentive for such searches in the first place. And so protects us all.
If one thinks “outside the board,” do you think a ruling that cuts the heart out of the rule would cause a hue and cry? Enough support to pass an amendment?
Question for the anti-judicial activism proponents – how is the remedy to be defined? That is, since the text gives no guidance, should the judiciary defer to the legislature to define the remedy? What if they don’t? What if a city/state passes a law that says “for any piece of evidence deemed gathered by an unlawful search, the collecting officer(s) shall be fined ten dollars”?
Scalia has a history of giving police full benefit of the doubt. One libertarian blogger constantly makes fun of an earlier opinion he gave in which he said a “new professionalism” among cops would weed out and punish those who stepped out of line.
Here’s a question, then: if nearly no other government in the world has an exclusionary rule like this, and you are skeptical (as others in this thread are, as am I) that other countries’ cops are just BETTER than ours, how come all of them haven’t collapsed into police states? Do you think American police ARE just more corrupt than other countries’? Or that there are regular problems with police framing in those countries that no one hears about?
It seems that the really big picture isn’t being discussed. Say, something terrible has occurred, the body of a small girl has been discovered. The girl has been raped and her head removed. Outrage! We must find the culprit, even if we have to trample on a few ‘technicalities’ to catch this fiend! No exclusion rule, What’s from stopping the cops from going down to the black section of town and kicking in everyone’s door? Or the gay section, or the democratic section or the Catholics? Even if they don’t find the girl’s head, anything they do find they can use.
Lets says they kick in a thousand doors and surprise!, not so much as a missing mattress tag. The act of kicking, or politely knocking is still some pretty good intimidation. “Next time somebody spits on the sidewalk, we’ll be back.” I seriously doubt that a class action lawsuit would be worth much if they still could come back. “Hi, we’re back (guns being cocked, shouts, flashlights) we’re looking for bootlegged CD’s” “Whoops nothing here, sorry about the disturbance, how’s that lawsuit coming?”
They only way to protect *innocent *people is to retain the rule.
). Police know if they want to get the bad guy they need to do things right. With the threat gone that the guy will go free if they violate his constitutional rights what compels the police to try and abide by it? Just cuz they are nice guys when they want to get you?