good morning friends,
i would like to thank all concerned for making this one of the most interesting threads i have read on this message board.
Trust the dreams, for in them is hidden the gate to eternity -Kahlil Gibran
This is slightly off-topic, but it brings up a question that bugs me. If the above is true, then how do the police get away with “checkpoints” where they stop all traffic to look for drunk drivers? Does this really happen and is it legal?
Bricker,
thanks for the follow-up. throrough and informative, as usual. (further info re federal supervisory rule-making power respectfully declined - my brain is full now).
getting back to the original post, we handle the issue somewhat differently in Canada, based in part on observation of the American system and the issues that many people have raised in this discussion. you guys may find it interesting as an alternative approach.
When we added the Canadian Charter of Rights and Freedoms to our Constitution in 1982, we adopted a modified exclusionary rule, rather than the automatic exclusionary rule used in the US.
Section 24 of the Charter reads:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
I’ve bolded the key word: “if.” Our exclusionary rule is discretionary, allowing the courts to weigh factors such as the severity of the Charter breach, the issue of good faith, the nature of the evidence, the seriousness of the charge, and so on.
This approach is more flexible, in my opinion, and allows a discussion of the various societal and individual issues that come into play when constitutional rights are violated in the course of a police investigation.
(My purely personal speculation is that it also leads to a more coherent body of case-law respecting searches, since the issue whether the search was constitutional does not automatically dictate whether the evidence goes in.)
and the stars o’erhead were dancing heel to toe
Good question.
Checkpoints do happen, and they are legal.
As I said above in discussing the stop of the friend’s car, pulling over an automobile and detaining its occupants is a “seizure” within the meaning of the Fourth Amendment, even if the purpose of the stop is limited and the resulting detention is short. The reasonableness of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.
The government has legitimate administrative requirements as to cars on the road: to ensure that inspection stickers, tax decals, and license plate stickers are up-to-date, for example. Further, it’s beyond cavil that there is a legitimate government interest in keeping intocicated drivers and unlicensed drivers off the road.
Balanced against that, of course, is the individual’s right to be free from unwarranted governmental interference.
In the case of roadblocks and traffic stops, the key element is the officer’s discretion. In 1979, the Supreme Court in Delaware v. Prouse reversed a conviction of a man who was pulled over as part of a “random spot check” by a Delaware police officer, ostensibly to simply check the driver’s license and registration. The Court said:
In concluding their opinion, the Court offered:
The Court clearly was signalling that roadblocks which do not involve any exercise of discretion on the part of the officer, and are applied to all persons on the highway at the time equally, would be acceptable.
Subsequent cases developed the balancing test to be applied (see U.S. v. Martinez-Fuerte, 428 U.S. 543, a balancing test in upholding checkpoints for detecting illegal aliens; see also Brown v. Texas 443 U.S. 47, Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer violates the Fourth Amendment absent reasonable suspicion).
For example, the Michigan State Police Department established a highway sobriety checkpoint program with guidelines governing checkpoint operations, site selection, and publicity. During a one-day operation of their checkpoint, 126 vehicles passed through the checkpoint, the average delay per vehicle was 25 seconds, and two drivers were arrested for driving under the influence of alcohol. The Supreme Court upheld the constitutionality of the roadblock.
There is no question that the Fourth Amendment is implicated - that is, a seizure occurs - when a vehicle is stopped at a checkpoint. The question then becomes one of reasonableness.
Given the very slight intrusion into personal liberties, and the significant governmental interest in highway safety, the Court found that the Michigan procedure passed muster. Under the Michigan guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist’s driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.
The Supreme Court held that, given the minimal initial intrusion into the driver’s time and freedom, the lack of discretion by the individual officer (the site is selected in advance, and all cars are subject to the stop), and the fact that further intrusion occurs only upon reasonable suspicion, this approach does not violate the Fourth Amendment.
So in summary, it’s true that for an officer to exercise discretion and pull over an individual car, he must have probable cause to believe a crime is being committed. However, for officers to briefly detain all cars on a particular road, without any exercise of discretion and subject to departmental guidelines published in advance, does not infringe upon the Fourth Amendment.
- Rick
Bricker, how about my hypothethical example of a defendant claiming he only confessed because he thought he was protected by Miranda? Would he have any chance of selling this argument in court or would the principle of “ignorance is no defense” win out?
Sorry - don’t know how I missed that!
The touchstone under §3501 is voluntariness. An accused who voluntarily confesses to a crime cannot claim his confession is inadmissible merely because he mistakenly thought Miranda was protecting him. In fact, such a claim will make for a short hearing, because he’s admitting to consciously and voluntarily making the statement.
He is certainly free to argue to the fact-finder that his confession should be disregarded for that reason, but his argument goes to the weight given to the confession, not the admissibility thereof.
Incidentally, the same logic would apply to a confession in other circumstances. If an accused believed himself to be in a custodial interrogation, and was being questioned, he might think, “Hey, I’m safe here in anything I say - they haven’t read me my rights yet!” So he confesses to the crime under investigation, as well as the Lindbergh kidnapping and the JFK shooting.
Now along comes the government, and wants to admit his confession. They claim that he wasn’t in a custodial interrogation, that he was free to leave at any time. If the court resolves that issue in favor of the government, our cocky prisoner is in a world of hurt.
Moreover, even if he wins that threshold issue, the government can use his confession as a prior inconsistent statement for purposes of impeachment, if he takes the stand.
All told, the best advice (which every defense lawyer wishes his clients were smart enough to follow) is: shut up. Don;t talk to the police at all. Tell them you want a lawyer, and don’t say another word. Never consent to a search. Most criminal defendants are convicted by their own words and evidence from searches to which they consented.
- Rick
I am beginning to think this thread should have been renamed, “Ask the Law Guy”. 
- Rick
Bricker, thanks for the reply. I appreciate the massive effort you have invested into this thread.
I second! Fascinating and informative! I take back all the mean things I’ve said about lawyers! 
If Cecil Adams did not exist, we would be obliged to create Him.
This is from http://www2.kgw.com/news/index.html
All right, Law Guy! What is up with that?
Today for you, tomorrow for me.
Well, two things are going on here. The first question that must be resolved is was there an error in the trial? If the reviewing court determines that there was an error, they then must consider whether the error had a likely effect on the outcome of the trial. If a trial contains an error, even of Constitutional dimension, but there is overwhelming evidence of guilt, the appeals court reasons as follows: “OK, there was an error. But let’s face it: even without that error, the guy still would have been convicted. That means this was harmless error.”
The harmless error analysis requires that a appellant show not only the mistake he complains of, but also how it hurt him. If he can show that there was a reasonable likelihood it contributed to the verdict, he will be entitled to a new trial. Harmless error seminal case: Chapman v. California, 386 U.S. 18 (1967).
The error complained of here is hearsay. Hearsay is an out-of-court statement, offered into evidence in an effort to prove the truth of the matter asserted in the statement.
Rather than rewriting myself, there is a link here that explains hearsay in a little more detail.
- Rick
I would add to Bricker’s comment that this case doesn’t appear to raise a constitional issue, just a question of whether the rules about hearsay evidence were properly applied.
Hearsay evidence is a common law concept that evolved in England, and is common to all common law jursidictions, regardless of constitutional provisions. The same issue could be raised in an English court case, and could result in the exclusion of the evidence on the grounds it violates the hearsay rule even though England does not have entrenched constitutional rights.
I just wanted to mention this to point out that the exclusionary rule for constitutional breaches is just a specific example of the exclusion of evidence. There are other grounds at common law and statute for the exclusion of evidence as well. The constitutional rule is simply one important example of the concept that certain evidence can be excluded.
and the stars o’erhead were dancing heel to toe
Generally speaking, it seems logical that most exclusionary rules exists because the purported evidence is fatally weak: it cannot lead to a valid conclusion.
The situation with hearsy seems to fall in this category. The person could be accurately telling the truth, or could be lying. Just because A says that B said X doesn’t mean B really said X. Thus A’s testimony is ambiguous; you can’t draw a conclusion from it.
The hearsay might be admitted if it’s detrimental to A to make the claim; why then would he lie? A valid conclusion might then be drawn from the testimony.
The exclusionary rule for an illegal search seems unique because it excludes strong evidence.
I’m not a lawyer, I’m just speculating from general logical principles.
If Cecil Adams did not exist, we would be obliged to create Him.
Actually, the admission of hearsay may raise Constitutional concerns. The Sixth Amendment includes the Confrontation Clause, guaranteeing that every accused is entitled “…to be confronted with the witnesses against him…”
The admission of hearsay evidence is violative of that guarantee, since the witness against him is not there.
SingleDad - you’re quite right. In general, the rule is that all relevant evidence is admissible. Evidence is relevant if it logically tends to prove or disprove a fact in dispute or to make the fact more or less probable and thereby aid the finder of fact in reaching a decision.
Relevant evidence may still be excluded if the danger for prejudice outweighs the the probative value. For example, pure logic might dictate that it’s relevant that a person on trial for arson was once previously convicted of arson. But the rules of evidence do not permit this information, because of the substantial danger that the jury will give that fact more weight than it deserves. They might well convict him based on their disgust with his past conduct, rather than the prosecution having proved every element of the current crime charged.
On the other hand, information about prior crimes is admissible if they go to show a common plan, scheme, or motive. In other words, if his previous arson conviction involved his taking out a $200,000 policy on the property, hiring a moving van to remove his personal contents, and igniting the contents of six cans of gasoline… then that might be admissible if his current crime also involved a $200,000 insurance policy, the prior removal of his personal contents, and six cans of gasoline.
But if one arson was for his personal residence, presumably to get insurance money, and another was a Molotov cocktail into his ex-wife’s car, for revenge… then the prior is not admissible.
- Rick
The whole reason I asked this question in the first place was to say how wrong it was to keep evidence away from the jury. Why are there some many complicated rules, the lawyers have taken the country away from the real people. Just tell the jury everything and let them decide, why not?
AvenueB,
It gets discouraging to keep responding to your posts when the content of your posts suggests that you haven’t read my post first.
Let me try one more example. Let’s say we have a guy accused of driving without a valid license, being tried by a jury.
I say that it’s not relevant, and not fair to tell the jury that the man once cheated on his girlfriend. Whether or not the guy cheated on his girfriend doesn’t help the jury to decide if he really drove without a valid license. And it carries a danger: a jury member might think, “Oh, he’s a cheater. What an ass this guy is. He probably did drive without a license, because he’s a bad guy.”
So the rule is that the jury is only told about evidence which directly relates to the current crime… because, after all, they should only be judging him on the current crime.
Does that make sense to you?
- Rick
sure, let’s tell the jury that the accused on a theft charge regularly beats his wife, is a godless communist, and deals drugs on the side. None of it is relevant to the theft charge, but the jury will sort it out…
we have rules of evidence to govern exactly what evidence is relevant; what evidence we will not accept from the police because of its effect on the rights of citizens; and what evidence is simply too prejudicial to be admitted, because of its marginal relationship to the case.
Some of these rules are judge-made, but many of them are set out in statutes, passed by the elected representatives, like Congress or Parliament. It’s not a case of us lawyers just making it up.
and the stars o’erhead were dancing heel to toe
If you are still asking that question, which has been answered from every possible angle already, well a quote from Ben Franklin seems apropriate: “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”.
I think that it sums you up perfectly.
Single Dad,
yes, there are different reasons for different exclusionary rules. Some are designed to exclude evidence that is seen as inherently untrustworthy, others are aimed at excluding evidence that may be more trustworthy, but is inadmissible because of the effect it has on other matters, such as individual rights of due process.
But, it’s not that easy to categorise rules on that basis, and the treatment of confessions is a very good example. As the passage from Miranda that Bricker quoted shows, part of the concern with confessions is that they may have been coerced, and are thus unreliable; access to counsel is one way to ensure that the individual knows what his or her rights are, and makes an informed decision whether to talk to the police.
To get back to the point I made earlier, this type of exclusionary rule is not unique to the United States, nor is it even unique to a system of entrenched constitutional rights. The English common law evolved warnings similar to Miranda warnings, with exclusion of evidence as a remedy. The concern was to ensure that only reliable evidence was before the courts, but that was closely tied to the issue of coercive police behaviour.
After all, a confession is hearsay - an out-of-court, unsworn statement, not subject to cross-examination. How does it get admitted?
Well, the hearsay rule is based on the simple idea that if A says he heard B say something that implicates C, you don’t rely on it - you call B to testify, since B is the witness, not A. A’s statement is unreliable.
By way of exception to that rule, an admission by the accused is itself admissible. If A tells B that he robbed the bank, B can testify to that and A might get convicted on the charge. That is hearsay - B is repeating an unsworn, out-of-court statement by A. But, it is admissible, because the courts have taken the sensible approach that a person doesn’t admit to a criminal act without good reason. The fact that A is implicating himself is a good indicator of the reliability of the statement, sufficient to overcome the hearsay concern.
But there’s an exception to the exception - if the police know that they can testify as to what the accused told them, there is a strong incentive to get a confession. So there is also the confession rule, to counter-balance the admissibility of an admission: an admission to a person in authority must be voluntary, and must be proved to be voluntary. So the common law evolved what the English call the “Judges’ Rules.” Around 1912, the English judges advised that they would not accept confessions to persons in authority unless the accused had been properly warned that he did not have to speak to the police, that he had a right to have a solicitor present, and that whatever he said could be used in evidence. That police warning became standard in the British common law jurisdictions, including Canada, and pre-dates similar constitutional requirements in our Charter.
The point is that this body of law is furthering two related goals - to ensure reliable evidence, and to deter police conduct that may undermine both the reliability of the evidence and the rights of the citizen.
and the stars o’erhead were dancing heel to toe
Bricker,
re 6th Amendment and hearsay - Damn! - you always catch me in a detail.
want to talk about the Canadian division of powers for a change?
and the stars o’erhead were dancing heel to toe