There is a middle ground between a police state (or a police tyranny) where every citizen is constantly harrassed with impunity and the current situation in the U.S. where we have sufficient historical examples of police malfeasance to be wary of allowing them carte blanche.
Other nations have harsh rules limiting freedom of speech in certain areas, much stricter laws limiting gun ownership, libel laws that make it much easier to prosecute/persecute anyone who speaks ill of a person if the speaker does not have absolute ironclad proof of their words, and any number of different approaches to law. Before I decide to throw out our protections to follow another nation, I would wish to see what other rules we need to change to match their quality of law.
I feel the exclusionary rule is a bad idea and for the reason others have mentioned - it’s probably the only legal procedure that only protects the guilty.
Let’s say the police decide to go looking for evidence of crime in my neighbourhood. And they decide they don’t need no stinkin’ warrents. So they bust down my door and ransack my house but find no evidence of any crimes being committed. Then they go next door and do it again and it’s another fruitless search. They work their way down the street, searching nine houses illegally and finding no evidence. But at the tenth house, they find a bag of heroin. They arrest the owner of the drugs and take him to court, where the evidence is promptly dismissed under the exclusionary rule and he walks free.
What kind of justice is it when ten people had their rights violated and the only person who benefitted from the exclusionary rule was the one guy who was actually guilty of a crime?
Fair point. I propose a new law: the police may seize any person’s guns. Should they be legally owned, the owner need only sue the government to have them returned. Anyone want to bet that Scalia would say that this passes constitutional muster?
I’m sorry, I’m still missing the relevance. The guy with the heroin also has the right against self-incrimination—that doesn’t help the other nine people either. I agree that the otherwise innocent people subject to unlawful searches should have some redress, but that’s such an obvious statement that I don’t think that was your point.
In addition, those nine people are protected by the rule, as the cops are less likely to do such wide sweeps in the first place.
The guy with planted heroin who was busted on an illegal search benefits also. It’s probably harder to plant evidence following legal procedures than not (besides the fact of implantation of course.) One of the reasons for procedures.
In light of the alarmed cries regarding the possibilty that the Exclusionary Rule lets Bad Things Happen, it is interesting to note the (general) reaction of the police, a couple of years ago, to the possibility that the Miranda decision would be overturned or seriously circumscribed. While a number of the folks who oppose “letting people off on technicalities” were cheering for a restrictive reinterpretation of Miranda, a large number of police forces and associations went on record saying that they hoped Miranda was not seriously changed. Their argument was that under Miranda, the police had a clear guideline to follow that actually made their jobs easier since it provided a bright line directive that was understood by both the police and the public. Thus, there was far less wrangling over whether an accused’s rights had been violated when the police simply followed established protocol. I tend to view the Exclusionary Rule in the same way. it is not police who are calling for it to be destroyed; they actually benefit by having a bright line decision regarding what is or is not acceptable.
Are they reacting the same? I have no context, so have no idea. But I would think this is a different situation. In that which you describe, the police benefit from a bright-line rule: evidence gathered by following Miranda was more likely to be used in prosecutions. If the remedy were different, however, there would be less need for the bright-line Miranda guidelines—evidence stays in regardless of whether or not a search was lawful, a confession coerced, council granted, etc.
In either case they have a bright line guideline: don’t violate the law if you want to win a prosecution.
Without that, they have to expend far more resources justifying their actions: time and effort that would be better spent actually enforcing the law rather than spent defending their actions against civil suits (or Federal investigations into discriminatory practices).
You guys are going off on tangents and are missing the central issue. We’re talking about the exclusionary rule not about self-incrimination or false evidence.
Why? The point of the exclusionary rule is that it “punishs” the police by having evidence ruled inadmissable. That’s the complete possible range of sanctions that motivates the police on this issue. So if the police want to search houses illegally they simply have to target the houses of innocent people - there’ll be no evidence inside and so no possible punishment can occur. The police can search without fear of punishment as long as they are able to avoid searching the houses of anyone who committed a crime.
You’re probably thinking this is absurd. It is - but only because the logic behind the exclusionary rule is absurd so the outcomes that logically derive from it are absurd.
Exactly. The punishment for an illegal search should not be dependant on what’s found during the search. A fruitless search should be punished just as much (if not more) than one that finds evidence. Redress like this would protect the innocent along with the guilty.
No one’s proposing that the exclusionary rule be the only “punishment” for violation of proper evidence-gathering policy…
The purpose of the exclusionary rule isn’t to be punitive to cops, but to serve as a deterrent. (It’s hard to even construe it as punishment, as such; at least, it’s not a very targeted or harsh one. But as a deterrent, sure; who would want to bother straying from proper procedure if the end result will just be a lot of wasted time for no gain? What would be the point?)
The thing that I’ve always found odd about the US exclusionary rule is that it doesn’t follow one of the usual principles of the law - that consequences should be proportional to the infraction. It doesn’t distinguish at all between a search that is illegal because of a minor error in a search warrant, and a case where the police say “screw the warrant requirement - we’re going in!”
Usually the law takes a proportional approach to problems, taking into account the motives of the parties, the nature of the mistake, the consequences of the mistake, public policy issues, and so on.
Not so the US exclusionary policy.
That’s why the drafters of the Canadian Charter of Rights and Freedoms adopted an exclusionary rule, but gave the courts discretion in deciding when the police misconduct warrants exclusion:
I’ve litigated issues under s. 24(2). If anyone has questions about how it works in Canada, please feel free to ask.
I don’t really believe that under current law the police can just search innocent people’s houses with impunity. At the very least I would think that would lead to lawsuits against the police department, and (in egregious enough cases) the officers in question being fired from their jobs. But if you’re really concerned about this, it’s an argument for more sanctions against police in cases of illegal searches, not for getting rid of the exclusionary rule.
But your whole point seems rather silly to me. You imagine the police searching houses – what, for fun? – while systematically avoiding those where wrongdoing is occurring. In fact, the main reason the police would want to search a house is because they hope to find evidence of wrongdoing. The concern expressed above is that without the exclusionary rule, they’d enter a house with no real reason for suspicion, on just the faint hope that they’d find evidence of wrongdoing. This would mean a lot more searches of innocent people’s houses. Thus, the exclusionary rule benefits innocent people by removing much of the incentive for the police to search their houses.
Um… they aren’t criminals. They are alleged criminals.
This would be ok, only of some other equally strong system of dealing with violations was put into place. Say, firing of, and maybe even criminal charges against any investigator who committed the violation.
Granted, my understanding of this is based more on court dramas than legal knowledge, but I was under the impression that this was to some extent the case in the US as well. That a lawyer had to object to the judge that the evidence should not be included on this principle, and it was up to the judge to decide whether the technical violation was severe enough to warrant excluding the evidence. I thought the judge had some degree of leeway in deciding.
I might be confusing this with something else though - like minor errors in the police statement such as misspelling the defendants name or address thereby causing the judge to dismiss the ticket.
While I wouldn’t want the exclusionary rule to disappear, if it’s not explicitly stated by the constitution I could see a Supreme Court judge determining that it’s up to each state to decide whether to use the exclusionary remedy or some other remedy instead. Is there Federal exclusionary legislation, or did each state decide on it’s own to do it?
I do not know how it plays out in Canada but in the US there are very notable distinctions in how the law is applied to various groups. You can have regional variations such that a judge in Texas will (likely) be far more permissive towards the police than a judge in (say) California. Then you also get distinct issues if the accused is some minority group. A poor black man is likely to find himself busted where a well-off white man would get a pass (there is ample evidence of such imbalance in the US in general in the legal system).
The exclusionary rule as it stands is much less open to such flaky results and can be applied more equitably.
How Canadians pull it off where the US can’t I am not sure. A more homogeneous society? More liberal judges? Something else? I don’t know but clearly different enough that I am not sure the Canadian model can be applied effectively to the US.
Thinking further on my reply in post #37 it occurs to me how the SCOTUS could “fix” this. To my mind they would not be fixing anything and make a bigger mess.
As applied today the exclusionary rule is universal (in the US). All police must abide by it. Now imagine the SCOTUS tosses the remedy as it is today that any illegally obtained evidence is inadmissible.
Where does that leave us? The SCOTUS cannot impose what the remedy should be. I am pretty sure the US Congress cannot impose what the remedy should be on the states.
You are now left with 50 states making up their own minds on how to deal with it and you will get 50 different answers. Ignorance of the law is never a defense but seriously, if you are traveling the US do you really read up on the local laws to figure what your rights are? We assume, as Americans, certain rights and protections exist everywhere. Some states do not require front license plates, some do. Do I need to worry and plan my trip to avoid states that require front license plates if I want to avoid being pulled over on a “mistake”?
Sounds perfectly awful and a complete mess to me. The rule as it is today allows for a clean line everyone knows about and can deal with accordingly.
As I wrote, the absurdity of the logic behind the exclusionary rule is what creates these absurd situations. I agree that it’s silly to assume that the police are willfully searching houses in a manner they know is illegal just because they have such a high desire to find evidence of wrong-doing - but that is the premise upon which the exclusionary rule is based. If the police are not knowingly conducting illegal searchs or if they do not have a desire to submit evidence in court then the exclusionary rule serves no purpose because it does not influence police behavior - it just because an exercise in random obstruction.
I think the notion that the police would just start randomly kicking in doors is overblown. As noted previously the exclusionary rule it the remedy for the constitutional protection. Tossing the exclusionary rule does not undo the constitutional protection such that police will not willy-nilly invade your house.
Presumably you could sue the cops for an illegal invasion of your privacy as you could today. However what if they DID find something? Say they found some illegal song downloads. Or your kid’s marijuana stash. Frankly I bet most people are guilty of some minor this or that. Own a gun not properly registered? Maybe you are not recycling in line with local laws? A friend of mine is a police officer and he has told me it is trivially easy to find something someone has done to break some law. Generally the cops ignore a lot of that but he said they would go there if you really pissed them off.
However, when the police are after you for whatever reason then without the exclusionary rule all bets are off. Caught speeding? Well, may as well turn your car inside out. If done illegally the onus is on YOU to sue then and go through all that hassle. You are creating yet more litigation possibilities. Particularly since many people view civil suits as a payday. Can you not envision a whole cottage industry of suing the police everytime any arrest is made? Scalia wants civil suits to be the remedy? No thank you.