Heh heh – no, I’d only display my ignorance. But if you felt moved to post an intro to the subject, I’d consider a chance for some good learning…
- Rick
Bricker, I am just saying that don’t the people have a right to understand there own law? Why is it so complicated that we need someone with seven years of school past high school to begin to understand it and even he cant understand everything. In olden days they would just know what was right and do it. I read everything you wrote about exclusions and still didnt get all the rules, how is anyone supposed to know? And this is my point, the people that write the laws are lawyers, the people that prosecute are lawyers, the people that defend are lawyers, and the people that decide the cases (judges) are lawyers, and even the juries arent allowed to do what they want. Why does it have to be so COMPLICATED??!?
I know everyone made points about the drugs thing and the Constitution and I dont know how to argue that exactly but I am not blind and I can see all these things that go wrong, this is not what the Founding Fathers would have wanted. Do you seriously believe that Thomas Jeffeson would have supported the idea that if a guy is caught with a dead body in his house by an illegal search the guy should just go FREE?? No because he was sensible. I am just saying that today we have gotten way away from that sensible rule of the law.
AvenueB-dude,
Welcome to life. Life is complicated.
In your most recent example, the individual will likely be charged with murder.
Considering that if convicted he will face potentially decades in prison, if not being killed himself, don’t you think the process to try him should be designed to test the state’s allegations against him as thoroughly as possible? That takes time and dispassion.
By the way, two historical examples. Some of the radicals during the English Civil War advocated the reduction of all laws to a book that would fit into a pocket. So, I think that you are incorrect to say that the law has gotten too complex recently - it’s always been complex.
Second, there was a very simple code in ancient Athens, the Code of Draco. Pretty muche every offence was punished with death. Draco is reputed to have been asked why, and he said that he started with the lesser offences, decided death would be the appropriate penalty, and then couldn’t think of any thing worse to punish crimes like murder. Admirable in its simplicty, but rather removed from fairness or justice.
and the stars o’erhead were dancing heel to toe
Very interesting thread; I regret I’m late for the party.
Yes, AvenueB-dude, it is extremely confusing, and not just to lay-people, but to anyone interested in Search and Seizure law. Now, take your confusion, and imagine you are a police officer. You may only have 10 seconds to decide whether you have probable cause to pull over a car, or stop the proverbial guy running with the guitar. In addition, after you make your decision, you have no idea whether some prosecutor or judge is going to tell you that you were wrong. Not an easy job.
That’s one of the reasons why most courts, the United States Supreme Court included, have recognized good-faith exceptions to the exclusionary rule (As Bricker pointed out earlier in a well-written dissertation.) It not only applies to search warrants, but may be applied to traffic stops, or in instances where a police officer relies on an unconstitutional statute. So don’t give up hope just yet.
“…a man of infinite jest.”
Very interesting thread; I regret I’m late for the party.
Yes, AvenueB-dude, it is extremely confusing, and not just to lay-people, but to anyone interested in Search and Seizure law. Now, take your confusion, and imagine you are a police officer. You may only have 10 seconds to decide whether you have probable cause to pull over a car, or stop the proverbial guy running with the guitar. In addition, after you make your decision, you have no idea whether some prosecutor or judge is going to tell you that you were wrong. Not an easy job.
That’s one of the reasons why most courts, the United States Supreme Court included, have recognized good-faith exceptions to the exclusionary rule (As Bricker pointed out earlier in a well-written dissertation.) It not only applies to search warrants, but may be applied to traffic stops, or in instances where a police officer relies on an unconstitutional statute. So don’t give up hope just yet.
“…a man of infinite jest.”
Oops. Still new at this.
Don’t let my stutter influence your view of my post.
“…a man of infinite jest.”
AvenueB-dude, you may wish to read Xenophon’s Hellenica in order to discover what happens when the people decide that it’s monstrous that they not be allowed to do whatever they wish.
jti, Draco seems to have been codifying current (to him) practice, not writing new law. The practice in the Athens of the 7th century BCE seems to be that the convict was punished, not with death, but with atimia, outlawry or loss of all rights. Of course, this probably meant effective death, as it freed the victim and/or the victim’s family to exact whatever retribution they saw fit, without fear of any intervention by the authorities of the time.
<minor hijack>Despite the severity of his code, Draco was very popular with the Athenians. So much so, in fact, that at one appearance at the theatre, the Athenians showed their appreciation by taking off their cloaks and throwing them on Draco as an accolade.
Draco was smothered by the pile of cloaks.</minor hijack>
“I don’t just want you to feel envy. I want you to suffer, I want you to bleed, I want you to die a little bit each day. And I want you to thank me for it.” – What “Let’s just be friends” really means
Bicker,
just wanted to give a belated thanks for the Spencer summary. I was expecting a little summary of the court’s reasoning and I got the whole decision. Talk about service! Hope you didn’t go to too much trouble. If you practice law remind me to hire you if I’m in trouble.
Thanks also for your posts on this thread, which are quite useful.
Sorry it took me so long to say thanks, but I avoid Mr. Dude’s threads, since he cannot respond to others in a rational manner.
Perked Ears indicate curiosity - Know Your Cat
I’m gonna jump back in here briefly, having missed most of the party thanks to exigencies of the weekend and such, and add something that has been missed in the discussion of the exclusionary rule.
There has been lots of debate over use of the rule as a method of reducing unconstitutional behaviour by police, and whether allowing suits instead would be better. I can only add to the commentary there: imagine our court system with an added class of lawsuits - the constitutional tort. (shiver)
But let’s get back to the exclusionary rule. The MAIN reason for the rule has to do with FAIRNESS.
In this country we take it as axiomatic that people should be convicted of the commission of a crime only through proper procedure.
I’ll let that sink in for a minute.
There are LOTS of ways we could increase the conviction rate. Some of them might not seriously reduce the accuracy of convictions; that is, we might be convicting only truly guilty people. If true, we would be doing society a favor, one thinks, by doing a better job of finding and convicting those who have committed a crime.
Our forefathers who put the whole scheme together eschewed that idea. They considered it much more important that the conviction of people result from a correct process. “Due process” isn’t some fancy phrase to give lawyers something over which to argue; it is a very important part of our jurisprudence. It comes to us after LOTS of work on the part of even more remote forefathers in England to keep the state in check in its endeavors to convict ‘criminals’.
Lest you think this is unimportant now, I simply direct you to the hysteria in the late 40’s and early 50’s surrounding communism in the U.S. Imagine facing a prosecution for communist sympathizing. Hell, for that matter, has anyone here ever faced a charge of sexual misconduct, such as with children or with women? Due process can seem a very slim shield from over-aggressive prosecution.
Evidence unconstitutionally siezed is excluded because it was illegally obtained. If the process is to have ANY meaning, it must include an unwillingness to deal in tainted efforts. Sure, the prosecutor could justify using the evidence (after all, HE/SHE didn’t sieze the stuff without a warrant), the judge could justify the use of the evidence (the JUDGE didn’t do anything wrong, and isn’t the defendant probably guilty, so why not use it?), and the jury wouldn’t even KNOW not to use it.
I prefer not to wallow in that muck, thank you very much. Do it right, or don’t do it.
In “olden days” they’d have strung you up by now for being a noisy, bothersome witch.
Esprix, who prefers things as they are, warts and all
Hi, Akutsakami!
Thanks for the better detail about Draco - I was going by the Britannica article (Draco), which refers to the death penalty - they must have over-simplified.
and the stars o’erhead were dancing heel to toe
As a point of interst, the USSC today ruled that an anonymous tip, by itself, is not enough to justify the police to stop and frisk someone. The Court was unanimous: Washington Post article.
and the stars o’erhead were dancing heel to toe
Hey Bricker,
you may find this interesting: an article by Yale Kamisar on the Dickerson case, which apparently is on appeal to the USSC. (I’ve not read it myself - I’ll read it at work tomorrow, as it’s work-related and I’m surfing.)
No surprise here – for ten years, the rule has been that unlike a tip from a known informant (whose reputation can be assessed and who can be held responsible if his allegations turn out to be fabricated), anonymous tips are considered less reliable. They can form the basis for a reasonable, articulable suspicion only if they are accompanied by specific indicia of reliability. For example, the correct forecast of a subject’s “‘not easily predicted’ movements.” (quoting Alabama v. White, 496 U.S. 325 (1990), the seminal case on anonymous tips).
In White, the police received an anonymous tip claiming that a woman was carrying cocaine. The caller told police that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel.
Standing alone, the tip would not have justified a Terry stop. Only after police surveillance showed that the anonymous caller had accurately predicted the woman’s movements did it become reasonable to believe that the caller had inside knowledge about the suspect and, thus, to credit his assertion about the cocaine.
The Florida v. J.L. case decided today by the Supreme Court had none of those indications of reliability. The caller in J. L. simply said that there was a young black male with a plaid shirt carrying a gun at the bus stop. When the police arrived, three black males were at the stop, and one was wearing a plaid shirt. This was J.L., so identified because he was a minor when arrested.
The anonymous caller didn’t offer any predictions that showed inside knowledge, or do anything else to bolster the reliability of his tip. The Florida police were not entitled to rely such a tip, without more, as even a reasonable suspicion.
So if it’s so obvious - why did the Supreme Court take this case? The Florida Supreme Court had already had reversed J.L.'s conviction.
They did it to tighten up a discontinuity amongst the circuits, and to remove the sense in some case law that there should be a “firearms” exception to the Terry rule. Terry is very clear: in order to accost someone even briefly, the police do not need probable cause, but must possess reasonable, articulable suspicion of wrongdoing. (Note that this does not prohibit the police from merely approaching a person and initiating conversation, as long as the person is free to disregard police and go about his business.)
But a number of cases hold (U.S. v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981); U.S. v. Clipper, 973 F.2d 944 (D.C. Cir. 1992); U.S. v. Bold, 19 F.3d 99 (2d Cir. 1994)) or suggest (U.S. v. Gibson, 64 F.3d 624; U.S. v. Walker, 7 F.3d 26 (2d Cir. 1993)) that if there is a weakly corroborated anonymous tip that involves a gun, the police are entitled to stop the person and search him for the gun. Armed persons, so went the rationale, are so dangerous to the peace of the community that the police should not be barred from following up on even an anonymous tip that a person is armed, and as a realistic matter this will require a stop and frisk.
The Supremes flatly refused to uphold that exception today. They stuck with the original rationale of Terry - you must have reasonable, articulable suspicion for s stop and frisk, and they stuck with Alabama v. White for the proposition that an anonymous tip, alone, is insufficient to create reasonable suspicion.
- Rick
Fascinating article, jti. Can you give us a brief summary of Escobedo and Mallory?
Escobedo was arrested and questioned in connection with the fatal shooting of his brother-in-law. He made several requests to see his lawyer, who, though present in the building, and despite persistent efforts, was refused access to his client. Escobedo was not advised by the police of his right to remain silent and, after persistent questioning by the police, made a damaging statement to an Assistant State’s Attorney which was admitted against him at trial. Convicted of murder, he appealed to the State Supreme Court, which affirmed the conviction. The Supremes reversed, saying that where a police investigation has begun to focus on a particular suspect in police custody, and where that suspect has been refused an opportunity to consult with his counsel and who has not been warned of his constitutional right to keep silent, the accused has been denied the assistance of counsel in violation of the Sixth Amendment and no statement extracted by the police during the interrogation may be used against him at a trial.
- Rick
Mallory (had to look this one up!) He was arrested on a rape charge early in the afternoon and was questioned at police headquarters. He was not told of his right to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and that any statement made by him might be used against him. Not until after petitioner had confessed, about 9:30 p. m., was an attempt made to take him before a committing magistrate, and he was not actually taken before a magistrate until the next morning.
His confession was used against him at trial and he was convicted and sentenced to death. The Supremes held that this was a violation of the Federal Rules of Criminal Procedure, which required that an arrested person be taken before a committing magistrate “without unnecessary delay.”
- Rick
Timeline:
Mallory: 1957
Escobedo: 1962
Miranda: 1966
§ 3501: 1968
Don’t worry, Bricker. I won’t tell your collegues that you’re able to explain something clearly and concisely! 
Are there any empirical measures to gauge Miranda’s effectiveness?
For instance, can it be shown that there was a post Miranda decline in the number of convictions reversed because the confession was found to be coerced? Also, was there a decline in the number of cases where the defendendant was found innocent, yet a conviction was introduced at trial?
It might be a little harder to gauge the cost of Miranda: how many convictions were lost because the police are now required to advise a suspect of his rights. However, one might be able to start drawing inferences from the proportion of cases where a confession is introduced vs. no confession.
Are these statistics available?
Not one shred of evidence supports the notion that life is serious.
Well, since I no longer practice law, it’s not as damaging an admission as it might otherwise have been! 
Normally, I might have said yes, and directed you to the congressionl testimony that preceded the enactment of §3501. However, the Kamisar article that jti posted calls into serious question the validity and evenhandedness of that report.
Let me look around and see if I can find another source.
- Rick